A few weeks ago, Ohio journalist Derek Myers was criminally charged with wiretapping for releasing an audio recording of a public court hearing. Prosecutions like these are rare and pose an enormous threat to press freedom.
First some background information on this case. George Wagner IV is currently on trial for murder in connection with the 2016 killing of eight members of the Rhoden family in Pike County, Ohio. The murder and the trial were widely reported in local news outlets. It has been called “the largest murder investigation in Ohio history.” The judge presiding over the trial allowed the witnesses to opt out of media coverage. Among those who opted out was Edward “Jake” Wagner, George’s brother, who pleaded guilty to all eight of the April 2021 murders. However, his testimony was public to all who went to the courtroom in person to see the trial. An anonymous source recorded the brother’s statement and sent it to the Scioto Valley Guardian, which published an extract on its website.
Myers, the editor-in-chief of the Guardian, is now facing wire-tapping charges for publishing the sound. His phone and laptop were confiscated on the basis of a search warrant, but as several other free press advocates have noted, that search warrant appears to violate the Ohio Shield Act and federal privacy laws. With no equipment and fear that any new equipment he brings to court will also be confiscated, Myers has stopped covering the trial.
This charge is manifestly unconstitutional. In 2001, the US Supreme Court ruled Bartnicki v. Vopper that the First Amendment protects the publication of illegally obtained information, at least when the publisher was not involved in the illegality. (Note that it’s possible the recording wasn’t made illegal — Myers has said the audio recording was recorded by someone authorized to have a phone in the courtroom.) Regardless, the law in this area is very strict clear. These allegations contradict Supreme Court precedent, which gets straight to the point.
But even if the wiretapping allegations were dropped or a court found them unconstitutional, the incident could have a chilling effect on journalists. It might make them reluctant to publish recordings they receive from confidential or anonymous sources. It could also discourage them from reporting public trials due to judicial restrictions, as in this case.
The incident also points to the need for uniform rules allowing cameras in courts. Allowing each judge (or, as here, each witness) to decide which devices can be used and when, goes against the long-standing principle of public access to court proceedings.
Senator Chuck Grassley (R-Iowa) put it well in a commentary on the power of the televised trial of former Minneapolis Police Officer Derek Chauvin, who was convicted of the murder of George Floyd: “[C]Cameras in that courtroom allowed the American people to watch every moment and dissect every syllable of the testimony with their own eyes and ears,” he wrote. “It showed our judicial system at work and reaffirmed the independence of the judiciary as the impartial arbiter of the rule of law.”
Like what you read? Sign up to receive the Nuance newsletter straight to your inbox!
The Reporters Committee for Freedom of the Press’ Technology and Press Freedom Project uses integrated advocacy – a combination of law, policy analysis and public education – to defend and advance press rights on issues at the intersection of technology and press freedom, such as: B. Reporters – protecting the confidentiality of sources, electronic surveillance laws and policies, and regulating content online and in other media. TPFP is led by Reporters Committee Attorney Gabe Rottman. He works with RCFP attorney Grayson Clary and Technology Press Freedom Project contributor Emily Hockett.