By Katie Keller
It’s rare that a college newspaper creates a nationwide constitutional controversy, but that’s exactly what happened in 1971, when The Stanford Daily was the plaintiff in a lawsuit that eventually reached the Supreme Court of the United States.
The Daily sued the chief of the Palo Alto Police Department, James Zurcher, after he led a search of Daily offices in an attempt to find photographic evidence that would assist the department in prosecuting protesters who had clashed with police officers during a sit-in at Stanford Hospital.
To Zurcher, his search of The Daily’s offices felt wholly necessary to the execution of justice. But to Daily staffers, it felt like an attempt to co-opt the press into serving as an instrument of the justice system.
During an era in which the relationship between citizens and authority was already difficult and occasionally explosive, The Daily found itself in a precarious position: caught in the middle of this dynamic while trying to maintain journalistic autonomy.
What ensued went far beyond a conflict between protesters, police and The Daily’s photography team: The incident put the First Amendment’s guarantee of freedom of the press in direct conflict with the Fourth Amendment’s provisions that give police officers with probable cause the right to search for incriminating evidence.
The controversy assumed the national stage over eight contentious years of legal action, a crushing loss for The Daily at the Supreme Court, national uproar from journalists and elected officials and finally, Congress’s passage of the Privacy Protection Act of 1980, which prevented such searches from happening in the future without a subpoena.
Though surely not as canonical as a Roe v. Wade or Brown v. Board of Education, Zurcher v. Stanford Daily and the legal questions it raised continue to challenge constitutional scholars to this day, especially given the changing nature of the journalism industry.
The case began humbly, with a small group of students that decided to challenge an injustice it felt it had faced. But it escalated as the students learned that they had just scratched the surface of a deeper tension inherent to news-gathering organizations in democratic societies.
Era of protest
The protest at Stanford Hospital that set Zurcher in motion was not an isolated incident; the late 1960s and early 1970s saw a high concentration of political activity at Stanford, driven by a growing rift between students and authority.
“Starting around  or so, there was a lot of protest on campus,” said Felicity Barringer ’72, editor-in-chief (EIC) of The Daily a the time of Zurcher’s search. “The Vietnam War was going on, and that was sort of the undercurrent of everything: the belief that the University was supporting an immoral war,” by holding military recruiting events on campus, among other issues.
It was certainly a busy time to work at The Daily. Clashes between student protesters and their adversaries — University administration officials and the police — were only getting more chaotic and dramatic as time went on, and The Daily had the challenge of reporting for the student body as a neutral third party.
As the protesters’ clashes with authority became more and more contentious, the University struggled to hold those students who contributed to violence accountable for their actions.
Gradually, the administration began employing its own photographers to create visual records of the demonstrations for its internal disciplinary procedures. These photographers were extremely unpopular among the protesters, and it was often nearly impossible to distinguish them from photographers working for news organizations like The Daily.
“If you had your eye behind the viewfinder of a camera in a raucous situation, trying to focus on the activity, trying to get the lighting right, the focus right and everything else, you’re not in a position to defend yourself if someone says, ‘Don’t take my picture,’” Barringer explained. “So, at that point, photographers are terribly vulnerable… Being a photographer at a demonstration became a loaded occupation.”
Margie Freivogel ’71, who preceded Barringer as EIC, decided with her editorial board that The Daily needed to do something to protect its photographers and its relationship with protesters. They decided to implement a policy that they had seen other local newspapers use: Going forward, they would destroy any possibly incriminating photos that could be used in court.
It was Freivogel’s hope that by publicizing this policy, The Daily might regain the trust of student protesters, who wouldn’t have to worry that Daily photos might be used against them in University disciplinary hearings or even criminal proceedings. At the very least, she hoped that the policy would “make people at least think twice about throwing rocks at our photographers [during protests].”
“We didn’t want to be an arm of the court, defense or prosecution,” Barringer said.
From Barringer’s point of the view, the policy allowed The Daily to preserve its tradition of uncensored reporting.
“We [could] write and print whatever seemed to best express the news of the day without fear or favor… without caring what would come of photographs in which people could be identified,” she said.
A bloody protest
On April 9, 1971, demonstrators from the Black United Front and the Chicano student organization MEChA held a joint sit-in at Stanford Medical School, protesting the firing of a black janitor and the denial of tenure for a Chicano professor. They barricaded themselves in a second floor hallway in protest and had a bloody clash with the police officers who tried to get them to leave.
Covering protests had become a routine part of the experience of Daily reporters by the time the conflict at Stanford Medical School arose in April 1971. So when they learned of the protest and heard that the police were going to show up, Daily staffers were more than ready to report on the controversy.
As it turned out, though, the eventual clash between protestors and the police resulted in an unusual level of violence.
“When the police stormed in — and our photographer was right behind them taking pictures of them storming in — the demonstrators went out the other side, viciously swinging clubs at the police,” Barringer said.
Along with two dozen demonstrators, 13 police officers were reported injured. The police department wanted to know who was responsible, and officers thought The Daily might have some answers.
A surprise search
According to Barringer, the police knew about The Daily’s policy of destroying potentially incriminating photos, but that didn’t stop them from quickly obtaining a search warrant and searching the entire building. In the search, they did not find any photographs that would benefit legal cases against participants in the sit-in.
Charlie Hoffman ’73 MBA ’76, who eventually succeeded Barringer as EIC, was in the Daily office working on an article when the search occurred.
“Palo Alto Police came diving in late at night,” Hoffman recalled. “They were flying through [the files on the desks]. There was paper everywhere.”
“[The police] were extremely thorough,” Barringer said. “We were kind of shell-shocked.”
Barringer and the rest of the leadership team at The Daily knew they would have to take action.
“We looked at each other and said, ‘We need a law professor. This can’t be legal,’” Barringer said. “If what is in our offices is essentially open to becoming evidence in court… we cease to be a journalistic organization and become an information gatherer… for legal proceedings.”
According to Barringer, she and her staff were motivated to take legal action against the police department not only to address the incident at the Daily, but also to protect other news organizations from surprise police searches in the future.
“There was nothing [we] could do to prevent the search, but we did feel as though there was something we could do to shine a light on it, to challenge it and ideally to make sure it didn’t happen to anybody else,” she said.
Early legal success
When Daily staffers looked further into the precedents for the search, they could not find another instance in which police had searched a news-gathering organization with only a search warrant, as opposed to a subpoena.
They decided to seek legal counsel from Anthony Amsterdam, who taught at Stanford Law School at the time, and he referred the case to Bob Mnookin and Jerry Falk, two young attorneys at a San Francisco law firm. The three legal experts agreed with the students’ analysis: They had a sound case that the police’s actions toward the press had violated the First and Fourth Amendments.
“My first reaction… was that it was outrageous, that they never would have done to The San Francisco Chronicle, much less The New York Times, what they did to The Daily,” said Falk, who still works as a lawyer in San Francisco. He remembers thinking that they “had a winning case for a subpoena-first rule.”
On the other hand, Mnookin, now a professor at Harvard Law School, recalls having some early reservations about how the arguments would be perceived.
“I was offended by what [the police] had done, but I did not think it would be an easy case,” he said. “There really had been some violence in terms of the demonstrations… and it was reasonably clear that The Daily might well have some photographs that might well be relevant.”
But despite Mnookin’s qualms, any early forecast of the case’s strength appeared quite prescient through the first two rounds of the suit. The Daily officially filed suit on May 1971, and in October of the following year, Federal District Court Judge Robert Peckham issued a summary judgment in The Daily’s favor. He opined that such searches of press organizations “are impermissible in all but a very few situations” under the First Amendment.
The police department appealed the decision, but the historically liberal San Francisco-based court of appeals issued an even stronger ruling in The Daily’s favor, going so far as to hold the police department responsible for The Daily’s legal fees.
“We got a to-die-for decision in the appellate court,” Barringer said, further musing that perhaps “that decision was so good and so much in our favor that the Supreme Court thought, ‘Maybe we ought to look at this.’”
A ‘crushing’ loss
The Supreme Court’s decision to take the case at all cast a pall over The Daily’s celebration of its second win.
The Supreme Court “didn’t take [the case] to hand out awards to the district court and the court of appeals,” Falk wryly explained. “They took it because they had doubts about it.”
Indeed, The Daily’s early legal success did not last through the case’s eventual hearing in the country’s highest court. The Supreme Court issued its 5-3 ruling in favor of Zurcher in June 1978 with Justice Byron White issuing the majority decision.
According to the opinion of the Court, the majority cohort of justices held that “the Court should balance the competing values of a free press and the societal interest in detecting and prosecuting crime” and stressed that the “Fourth Amendment [does not contain] an implied exception for the press.”
“Some [justices] thought, ‘Well, it’s only reasonable that if there’s evidence showing who those [protestors] were, [the police] should be able to find it’ — especially since they went to the magistrate and were authorized to search,” said Bob Percival J.D. ’78 M.A. ’78, who began clerking for Justice White in 1978 and became very familiar with White’s perspective on cases like Zurcher.
“The police seemed to have conducted themselves very well. They didn’t mess up the offices of The Daily, they put everything back, they didn’t find anything.”
He further explained that the justices in the majority were concerned with the appellate court’s award of attorney’s fees against the police, a precedent that they believed might inhibit police from trying to enforce the law.
“The justices thought this [was] kind of an overreach to punish the police for what they, in good faith, thought was lawful behavior and when they acted reasonably,” Percival said.
Justice Potter Stewart’s dissent, on the other hand, gave more weight to the infringement of the First Amendment guarantee of freedom of the press than to the ability of police officers to pursue evidence.
Stewart wrote that a police search of a newsroom not only “will inevitably interrupt its normal operations and thus impair or even temporarily prevent the processes of news-gathering,” but would also threaten the press’s ability to promise confidentiality to sources, which is “necessary to ensure that the press can fulfill its constitutionally designated function of informing the public.”
Falk did not mince words as he described his disappointment with the majority’s ruling.
“To this day, I think I am more bitter about losing this case than anything else I’ve ever done,” he said. “It was a huge injustice.”
Falk reflected that unintended interpretations of The Daily’s policy of destroying possibly incriminating evidence may have cost them the vote of Justice Lewis Powell, who would have swung the decision in The Daily’s favor. According to Falk, Powell “found it offensive” that The Daily could use the policy to destroy specific evidence that it thought might get subpoenaed.
“He [was] right, of course; if you destroy evidence in response to a subpoena, it’s a crime,” Falk allowed. “But that wasn’t the intent of the [policy].”
For the then-former Daily staffers who had been a part of this legal process since its inception, the defeat in the Supreme Court confirmed their worst nightmare: setting Supreme Court precedent against journalistic privacy instead of in favor of it.
“It was crushing,” Hoffman said. “The last thing we wanted was a judicial decision to the negative on this issue.”
Hoffman commented that while the decision did not immediately affect The Daily’s regular operations, the staffers were “disturbed” by the “horrible precedent” that the ruling set that could be applied to other instances of police infringements upon press confidentiality.
Freivogel, who described the entire process as “exhausting, chaotic [and] heart-wrenching,” remembered having a similar worry about the possible unintended consequences of their suit.
“Everyone is always trying to be careful about what cases they bring so that they don’t create a bad precedent,” she said. With a wry laugh, she recalled the reaction of the staffers: “‘Oh gosh, what have we done?’”
Outrage over the ruling reached far beyond Daily staffers and their legal counsel: Journalists around the country were quick to condemn it and advocate for a legislative remedy. A New York Times opinion piece warned that “if the free press is eroded in the name of justice, justice will surely be eroded next,” and a column in The Washington Post declared that there was “a critical need to overrule the Supreme Court to protect the innocent again from public abuse.” A Los Angeles Times columnist even joked darkly that the right to privacy had been so threatened that “even your mattress is no longer safe.”
But despite having lost in the Supreme Court, things started to look up for The Daily as the journalistic privacy issue moved from the judicial branch to the legislature. Many politicians agreed with the journalists who had expressed opposition to the Zurcher ruling, seeing the need to keep the press separate from the legal system as much as possible.
“Shield laws” intended to curb searches of third parties like news-gathering organizations in legal proceedings were quickly proposed, and within a year, many states had passed such laws. The Justice Department also quickly adopted a similar internal policy that discouraged federal prosecutors from seeking unpublished materials from the press in prosecutions.
This legislative response culminated in Congress’s passage of the Privacy Protection Act of 1980. The law established what lower courts had proposed in the Zurcher case: the requirement of a subpoena to search newsrooms for their unpublished materials.
President Jimmy Carter’s signing of the law let The Daily’s advocates breathe a sigh of relief; though not by the means they had initially expected, their lawsuit ended up fomenting positive progress toward the preservation of the autonomy and confidentiality of journalists.
“The most important impact [of bringing the lawsuit was to raise the issue [and call] attention to what Zurcher had done,” Mnookin said, adding that he felt relieved that Congress “essentially cut back the breadth of the Supreme Court’s decision… and [redressed] the balance toward the direction we wanted.”
Privacy Protection Act applied
Establishing this subpoena-first rule with the Privacy Protection Act proved to be an important step toward regulating the often tense relationship between the press and prosecutors. In fact, this issue resurfaced multiple times for Freivogel during her long career as a journalist.
Freivogel worked as the news editor for St. Louis Public Radio in 2014 during the massive demonstrations in protest of Michael Brown’s shooting, which occurred a few towns over in Ferguson.
Not long after one particularly serious protest, the radio station received a subpoena from the City Attorney requesting all of the reporters’ notes, audio outtakes, photos and the like. Political unrest, grassroots social movements and police turning to journalists for help with prosecutions? Freivogel had seen this movie before.
“It took me right back to the same principle,” Freivogel said. “You don’t want your reporters and photographers to be seen as gatherers of evidence for the authorities.”
Because of the Privacy Protection Act, police officers couldn’t enter the newsroom with a search warrant alone as they did in The Daily office in 1971. According to Freivogel, requiring the police to acquire a subpoena preserved St. Louis Public Radio’s agency and confidentiality by allowing the two parties to discuss the merits of the request, outside the heat of the moment.
Though challenging the subpoena in court did not end up becoming necessary — it was eventually dropped — the organization could have challenged it in court. The guarantee of that right, she said, was an important accomplishment in itself.
However, that the fact that they even received the subpoena is cause for concern, Freivogel said. To her, the incident represented the legal system’s lack of respect for the merit of the free journalistic process and the chilling effect that the system’s actions can have on free journalism.
“The federal justice department has a guideline that basically says they’ll only go to reporters as a source as last resort,” she pointed out. “And [the St. Louis City Attorney] had not gotten even close to seeing if that was the case here.”
An uncertain future
Freivogel’s déjà vu may be emblematic of continued tensions in the relationship between the media and the government. But while those tensions may not be going anywhere, the relationship itself has surely changed in the years since The Daily’s Supreme Court case as the media continues to expand into new frontiers.
The onset of the Digital Age has made it less clear whom the Privacy Protection Act actually protects. As both Freivogel and Percival noted, the country’s press has shifted from legacy media to a fluid space to which everyone can contribute.
According to Percival, applications of the Privacy Protection Act are much more complex today, given that the situation the law was written to prevent — a police search of physical files and photo negatives — feels glaringly antiquated.
“[The Act was written] in an era when the only way [for the police] to get the photographs was to actually look in the files of newspaper,” Percival said. “Today, everything would be on social media.”
The rise of the Internet and proliferation of online media organizations have also led to an expansion of the newsmaking profession beyond traditional journalists.
“Anybody can be a reporter and can reach everybody through digital media,” Freivogel said. “Now, you get into the question of, ‘Who is the press?’”
It would have been difficult at the time to predict the ways the media would change in the years after the Zurcher decision, and it remains to be seen if any new legal precedent will arise in response to these changes. But the principle for which The Daily advocated at the Supreme Court remains a central tenet of the modern journalism industry: that privacy and autonomy are paramount to the preservation of the free press.
Contact Katie Keller at ktkeller ‘at’ stanford.edu.