A settlement that ends more than a month of negotiations between the Commonwealth of Virginia Attorney’s office and The Breeze, student newspaper at James Madison U. was reached Monday.
As part of the settlement, Marsha Garst, the Commonwealth’s Attorney, issued a statement today expressing regret for the “fear and concern that I caused The Breeze and its staff,” when she and other law enforcement officials executed a warrant and seized 962 photos from The Breeze on April 16th. Garst’s statement also promised to use a subpoena, not a search warrant, in any future requests for evidence from a news organization unless there was an “imminent need to prevent the loss of life or the threat of bodily injury.”
According to the terms of the settlement, 20 photos of the April 10 Springfest riot have been released to the Commonwealth Attorney’s office. The remaining 942 photos initially seized will be returned to The Breeze and not released to authorities. The Breeze argued that the original seizure of the photographs violated a federal statute that prohibits law enforcement officials from using a warrant to take newsgathering materials from a newsroom except in very limited circumstances.
Garst also agreed to pay $10,000 of The Breeze’s legal fees, intended to “resolve any monetary payment . . . including compensatory damages, punitive damages, attorney’s fees and costs.”
The dispute over the photos began when Garst executed a search warrant on The Breeze offices April 16 and copied 962 photos from The Breeze server, 600-some which were from the Springfest party and riot on April 10.
That weekend, with the help of the Student Press Law Center, an advocacy organization for student journalists, The Breeze engaged a Washington, D.C. law firm, and Garst returned the seized photos to Breeze faculty adviser Roger Soenksen.
The Breeze’s Editor-in-Chief Katie Thisdell said she was satisfied with the settlement.
“I’m pleased we were able to reach this settlement with the Commonwealth’s Attorney, and that they’ve expressed regret and have pledged not to pursue information without a subpoena,” Thisdell said.
A subpoena, unlike a search warrant, gives the receiving party enough time to legally dispute turning over evidence.
During the negotiations, the requests for photos were narrowed down to match specific incidents.
Thisdell said The Breeze turned over the 20 photographs because Commonwealth’s Attorney showed that she had exhausted all other sources and The Breeze’s photographs were the only sources of some information from Springfest.
Brad Jenkins, general manager of The Breeze, said he thought the settlement came out in the newspaper’s favor.
“I’m pleased [Garst] has committed not to use a search warrant on a newsroom, unless it falls in the parameters to use one,” Jenkins said. “I think it’s a good thing that Katie [Thisdell] could basically go from having them take 900 photos, to coming to an agreement where they only could take the photos they have no evidence for.”
The Breeze opted to settle the issue informally instead of pursuing formal litigation against the Commonwealth Attorney’s office, which would have been more expensive and time-consuming, and may have ended in an order requiring it to turn over all or many more of the confiscated photos.
The court might well have “ruled we would have to turn over those photos and many more,” Jenkins said. “We felt comfortable cooperating with the Commonwealth Attorney because she had exhausted all other avenues of evidence.”
The Breeze had argued it was not required to give up all the photos because of the qualified journalist’s privilege, which guards a journalist’s materials from being used in a criminal investigation unless there is no other source.
“In Virginia there’s a qualified [journalist’s] privilege, which you overcome by demonstrating what you are seeking is essential and you can’t get it any other way,” said Seth Berlin, The Breeze’s lawyer.
According to the settlement, Garst narrowed her May 3 request down to photographs of eight specific incidents during Springfest.
“We were able to get the Commonwealth’s Attorney to narrow down her target from every photo to only a few,” Berlin said. “The Breeze decided to turn them over because a subpoena might have led to possibly more photos having to be turned over.”
On April 10, an annual off-campus party, which in the past had only attracted a few thousand, had over 8,000 people attend. The party escalated when partygoers began throwing beer bottles and harassing police officers.
Virginia State police officers, assisted by Alcoholic Beverage Control agents, Harrisonburg police and other local agencies, acted to regain control of the situation. Police used riot gear, tear gas and rubber bullets to disperse the crowd.
Numerous arrests were made during the event and later as a result of photos and videos posted online.
During the weekend following the seizure of the photographs The Breeze received legal counsel, and Garst returned the sealed photos to Breeze faculty adviser Roger Soenksen.
Soenksen remained in possession of the photos until the settlement over the disputed incident was reached.