Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Okay, Towey family, big smiles.
Speaker 3: Everyone and a one two three.
Speaker 1: Michael, Michael, come on down here and get in the
Speaker 1: next one.
Speaker 2: You threaten my son. You threaten me.
Speaker 1: You so much is crossing to downtown.
Speaker 2: You will be sorry.
Speaker 1: I'm in a prayer group with a DA I'm a
Speaker 1: member of the NRA.
Speaker 2: And I'm always packing.
Speaker 1: In the movie The blind Side, Michael Orr's story has
Speaker 1: a happy fairytale ending. He's part of the Towey family
Speaker 1: who adopt him.
Speaker 3: We want to know if you would like to become
Speaker 3: part of this family.
Speaker 1: Kind of thought I already was, But Or now says
Speaker 1: that was fiction. Though the Tuys still refer to him
Speaker 1: as their son, they never adopted him. Instead, Sean and
Speaker 1: LeeAnne Toohey placed him in a conservatorship, which gave them
Speaker 1: total control over his legal rights, like the ability to
Speaker 1: enter into contracts and make medical decisions. That conservatorship started
Speaker 1: when he was eighteen years old and remains in effect today.
Speaker 1: Nearly two decades later. Or is suing the Tooyes to
Speaker 1: end the conservatorship and to get an accounting and his
Speaker 1: share of money from the best selling book in film
Speaker 1: based on his life. The Twoeys have denied any wrongdoing
Speaker 1: and say they've treated or like a son. Joining me
Speaker 1: is an expert in conservatorships, Jonathan Martinez, the Senior director
Speaker 1: for Law and Policy in the Burton Blatt Institute at
Speaker 1: Syracuse University. What's the most shocking thing to you about
Speaker 1: this or conservatorship or isn't it shocking at all?
Speaker 3: It's shocking, but not surprise what I've read about Michael
Speaker 3: or what he has said about his situation. I just
Speaker 3: literally recently read the blurb from his memoir where he
Speaker 3: said he was told it was a quote unquote legal conservatorship,
Speaker 3: but told it was the same thing as becoming adopted
Speaker 3: or becoming part of the family. Tells me that he
Speaker 3: didn't know what he was agreeing to, that he didn't
Speaker 3: understand what a conservatorship is, and maybe the family didn't
Speaker 3: understand what a conservatorship is, and that's the problem. Far
Speaker 3: too often, conservatorship or guardianship as it's called in other states,
Speaker 3: is done as a matter of convenience to make things easy,
Speaker 3: when what it really does, by definition is removed people's rights.
Speaker 3: Guardianship and conservatorship, and there is no problem with either
Speaker 3: one of those when they're needed. By definition, takes your
Speaker 3: rights away and gives them to someone else. And when
Speaker 3: we say we're doing that because it's the same thing
Speaker 3: as an adoption, it's not. Or if we're doing it
Speaker 3: because it's easier than doing something else, it's not. Rights
Speaker 3: are really precious things. The right to choose where and
Speaker 3: how and with whom we live are the things that
Speaker 3: make us who we are. So when I hear something
Speaker 3: like I sign the paper because I was told it
Speaker 3: was the best way or the easiest way, or I
Speaker 3: was told it was the same as it's shocking, but
Speaker 3: it's not surprising because I've heard it many many other times,
Speaker 3: from judges, from lawyers, from families. It's just easier, and
Speaker 3: it shouldn't be easy.
Speaker 1: To remove, right, So explain the difference between adoption and conservatorship.
Speaker 3: The adoption, one person becomes the legal parent of someone else,
Speaker 3: and parents have certain rights when it comes to their children.
Speaker 3: But when you adopt an adult, you don't get the
Speaker 3: right to override their decisions. You just become known as
Speaker 3: their mother or their father for legal purposes. If you
Speaker 3: adopt a minor. That is very different if you adopt
Speaker 3: a seventeen year old. Michael Orr was over eighteen, so
Speaker 3: they would not have gained if they had adopted him,
Speaker 3: the right to make decisions for him or manage his
Speaker 3: money without him having the right to say yes or no.
Speaker 3: In a conservatorship or guardianship, what happens is a person becomes,
Speaker 3: in a very real sense, the other person. Legally, if
Speaker 3: I'm your guardian, I get the right to make decisions
Speaker 3: for you. I'm the final decision maker. It's my say so,
Speaker 3: whether or not you like it. If I'm an adult
Speaker 3: and my mom is still my mom, she doesn't get
Speaker 3: the right to make decisions for me if I don't
Speaker 3: want her to do so. But if my mom was
Speaker 3: my guardian or my conservator, she would have the right
Speaker 3: to do that even if I didn't want her to.
Speaker 1: The two weeys haven't filed an answer yet to the complaint,
Speaker 1: but in response they've said that lawyers told them at
Speaker 1: the time they had to use a conservatorship, not an
Speaker 1: adoption because Or was eighteen and also that but the
Speaker 1: conservatorship was the quickest way to satisfy the NCAA's concerns.
Speaker 1: That the family was just steering him to their alma mater,
Speaker 1: oh Miss. But Tennessee law says eighteen year olds can
Speaker 1: be adopted. It just requires the sworn, written consent of
Speaker 1: the person sought to be adopted.
Speaker 3: I wasn't there, I didn't hear the advice given. But
Speaker 3: once again, this is hardly surprising. I've heard lawyers give
Speaker 3: the advice to seek a guardianship or seek a conservatorship
Speaker 3: because it's easier, because it's more convenient, because it's the
Speaker 3: fastest way to do things, when what it really does
Speaker 3: is remove people's right. What you've said about Tennessee law,
Speaker 3: that's also not surprising because adults can be adopted anywhere,
Speaker 3: So it doesn't surprise me that someone would receive the
Speaker 3: advice to take the quickest path, and if in their
Speaker 3: minds the quickest path was conservatorship. Again, it is shocking
Speaker 3: that we in the year twenty twenty three, we'd be
Speaker 3: giving people to remove someone else's legal rights because it's convenient.
Speaker 3: But that seems to be exactly what happened, and it
Speaker 3: happens a lot.
Speaker 1: For a conservatorship, Tennessee law requires evidence of a disability,
Speaker 1: and there was no evidence of a disability listed for
Speaker 1: or should a judge have caught that.
Speaker 3: There were stuck once again in the theory of a
Speaker 3: conveyor belt, where judges will say, if no one objects,
Speaker 3: I'll sign this order. And no one objects, But the
Speaker 3: answer to your question is yes. I speak with judges
Speaker 3: a lot. I've lectured to judges, I have presented judicial conferences,
Speaker 3: and here's what I tell them about guardianship. I tell
Speaker 3: the judges that you are the true guardians of the
Speaker 3: law unintended. You have to make sure before you sign
Speaker 3: that paper that everything is in order. You would not
Speaker 3: enter an order that wasn't legally appropriate. In a different
Speaker 3: kind of case, you would not convict someone of a
Speaker 3: crime unlady, there was proof beyond a reasonable doubt. In fact,
Speaker 3: when someone pleads guilty, the judge has to hold a
Speaker 3: hearing to make sure that that lee is knowing and voluntary,
Speaker 3: and if the judge doesn't think it is, the judge
Speaker 3: has an obligation not to expect it. So judges in
Speaker 3: guardianship cases, even when no one objects, in my opinion,
Speaker 3: have an obligation to make sure it's still appropriate for
Speaker 3: guardianship or for conservatorship. I tell judges this. I tell
Speaker 3: people this all the time. The most important question we
Speaker 3: can ask before we agree that the guardianship is right
Speaker 3: is this one. What else have you tried? Because in
Speaker 3: ninety eight percent of cases, yes, a person in a coma,
Speaker 3: of course needs a guardian. A person at the end
Speaker 3: stages of dementia, of course needs a guardian. I understand.
Speaker 3: But a whole lot of the time, how do you
Speaker 3: know that this is your only option? That a person
Speaker 3: truly cannot make decisions or manage their own lives until
Speaker 3: they've taken the time to examine and explore whether it's
Speaker 3: something else that would preserve the person's rights might help.
Speaker 3: There are recognized alternatives that could help in a situation.
Speaker 3: They might help, they might not. If they wouldn't help,
Speaker 3: then guardianship and conservatorship are fine. But given the rights
Speaker 3: at stake are the rights that you and I and
Speaker 3: every American should hold, precious freedom of speech, freedom of association,
Speaker 3: and freedom to vote, freedom to marry, all of these
Speaker 3: things that make us who we are, they're at stake
Speaker 3: in a guardianship or conservatorship, And given that, shouldn't a
Speaker 3: judge take that second to say, wait a second, I
Speaker 3: know that everyone agrees that they want this, but is
Speaker 3: this legally appropriate? I think that is the least the
Speaker 3: judicial system can do in a case like this.
Speaker 1: When a defendant pleads guilty, the judge asks, are you
Speaker 1: pleading of your own accord if you take the drugs?
Speaker 1: Blah blah blah. Do they ask the prospective war do
Speaker 1: you understand what you're giving up here?
Speaker 3: I have seen these case is done entirely on paper.
Speaker 3: The quick anecdote I can give you is there's a
Speaker 3: phenomenon called a ghost guardianship where a person winds up
Speaker 3: in guardianship without a hearing, sometimes not even notice. In
Speaker 3: some states, that happens that we not only don't have
Speaker 3: an inquiry, we don't even have the barest minimum of
Speaker 3: an inquiry where even if the law says you're entitled
Speaker 3: to notice as an opportunity to be heard. I have
Speaker 3: done research where I have found have rural cases with
Speaker 3: even that minimum didn't happen. So yes, and when asked,
Speaker 3: I have heard judges say I've heard people say, well,
Speaker 3: we're just trying to make it easier. This is a
Speaker 3: parent who is trying to take care of someone, or
Speaker 3: this is a caring friend who is trying to do
Speaker 3: much best for someone. And I understand that the motivations
Speaker 3: try to be helpful, But again, think about what's at stake.
Speaker 3: Shouldn't we have the barest minimum to make sure that
Speaker 3: such an extreme remedy is right before.
Speaker 2: We do it.
Speaker 1: I think I know your answer to this question, but
Speaker 1: I'm going to ask you if this shocks you. In
Speaker 1: Oors case, the judge who approved his conservatorship told Bloomberg
Speaker 1: that no case papers ever crossed his desk after the
Speaker 1: initial approval. So the conservators never filed annual accountings or
Speaker 1: fiduciary or other court papers for nearly twenty years. Does
Speaker 1: that surprise you?
Speaker 3: No. I have a case very recently in another state
Speaker 3: where we terminated the guardianship after over ten years because
Speaker 3: no reports that have been filed. And by the way,
Speaker 3: the person have been putting guardianship in the first place
Speaker 3: without such an inquiry and without such a hearing. So no,
Speaker 3: of course it happens. And here's are I'll be a
Speaker 3: little sympathetic to courts. They are overwhelmed. They have lots
Speaker 3: of paperwork they have to look at, they have lots
Speaker 3: of cases before them, So it may be that they
Speaker 3: don't notice that a report isn't filed. But on the
Speaker 3: other hand, is this their obligation to notice? If the
Speaker 3: laws says you must file annual accountings, and I know
Speaker 3: it does, it doesn't ever say, God, I've booked up.
Speaker 3: Why does it say that if it's not being done.
Speaker 3: It is there to create that important safeguard. It is
Speaker 3: there to create a backstop to make sure that at
Speaker 3: all times guardianship remains appropriate, that conservatorship remains the right option. Well,
Speaker 3: if we're not looking at the papers, we're even looking
Speaker 3: for the papers, where is that safeguard?
Speaker 1: Or is seeking end the conservatorship and to require the
Speaker 1: twoes to account for their actions? But an attorney representing
Speaker 1: the twoe'es said they plan to enter a consent order
Speaker 1: to end the conservatorship. What happens then to Ore's request
Speaker 1: for an accounting? Will there be an accounting?
Speaker 3: I don't know. You can say you hope so, But
Speaker 3: I can give you a more concerning issue. If they're
Speaker 3: willing to enter a consent order now that a conservatorship
Speaker 3: wasn't required, doesn't that mean they know he doesn't need one?
Speaker 3: And the question I would ask was when did they
Speaker 3: know and how long have they known? And haven't they
Speaker 3: always known? That's what I mean about rights being precious.
Speaker 3: It was the easiest thing to do to put him
Speaker 3: in conservatorship, But that easy thing removed Michael Orr's rights.
Speaker 3: And if it's now so easy to enter a consent
Speaker 3: decree to remove it, why were his rights removed in
Speaker 3: the first place. Why do we have such a cavalier
Speaker 3: attitude about a person's fundamental legal rights that we can
Speaker 3: say at the drop of a hat, oh, I'll remove it.
Speaker 3: I'll remove the conservative ship, just like we said at
Speaker 3: the drop of a hat, I'll remove those rights. Would
Speaker 3: you want that to happen to you? Would you want
Speaker 3: your rights to be so fragile that they could be
Speaker 3: taken away at the drop of a hat and restored
Speaker 3: at the drop of a hat. Shouldn't they be something
Speaker 3: that is respected and protected the same way they's supposed
Speaker 3: to be?
Speaker 1: So he was in the fell for years and years
Speaker 1: and made quite a lot of money. Any contract that
Speaker 1: he signed. Would they have had to sign the contract
Speaker 1: for him?
Speaker 3: Once again, obviously I wasn't there, so I can't answer
Speaker 3: what was done, and I can't answer how his conservatorship
Speaker 3: specifically was set up. But if it is a standard
Speaker 3: the conservatorship, which essentially removes person a's rights and gives
Speaker 3: them to person B, then yes, the legal conservator would
Speaker 3: stand in the place of the person and would be
Speaker 3: ultimately the one who had to approve any legal documents.
Speaker 3: That's the way it should work, the way the laws
Speaker 3: and to be written. I have no idea what happened
Speaker 3: in his specific situation.
Speaker 1: And conservatorships in general, do they go on until someone
Speaker 1: makes a move to put a stop to them.
Speaker 3: Yes. I tell people this all the time. When you
Speaker 3: apply to be your child or your loved ones guardian,
Speaker 3: our conservator, what you're really doing is inviting the court
Speaker 3: into your life for the rest of that person's life
Speaker 3: because you're suppose to give those reports, you were supposed
Speaker 3: to do all of those things, and that guardianship or
Speaker 3: conservatorship will continue until it is ended by you or
Speaker 3: by someone else, or by the person. You have invited
Speaker 3: the court and the court system into your life forever
Speaker 3: until it's over.
Speaker 1: So he's asking for an accounting and also for compensatory
Speaker 1: and punitive damages for their misconduct. Does that seem like
Speaker 1: an uphill battle?
Speaker 3: I've never heard of a person receiving damages because of
Speaker 3: a conservatorship problem. I think it's an interesting concept. I'd
Speaker 3: certainly like to see how it plays out. I haven't
Speaker 3: read the lawsuit, so I can't tell you what theory
Speaker 3: they're using for it. But if wrong was done, and
Speaker 3: I have no idea if wrong was done, but if
Speaker 3: this person was genuinely wrong, then shouldn't he have a
Speaker 3: right to have an accounting both fiscal see how much
Speaker 3: money was misused, and you know, emotional to have them
Speaker 3: be accountable to him if they did wrong. I think
Speaker 3: that's why we have courts systems, and I hope the
Speaker 3: answer is found.
Speaker 1: Did the Britney Spears conservatorship bring light to this area
Speaker 1: at all?
Speaker 3: Absolutely? Absolutely it did. The Free Britney movement was huge
Speaker 3: on castail light on the exact issue. I was talking
Speaker 3: about that fundamental nature of guardianship and conservatorship and that question.
Speaker 3: I said, we need to ask what else can we try?
Speaker 3: Think about Britney Spears for a second. This is a
Speaker 3: multi multi multimillionaire. If Britney Spears if had a disability
Speaker 3: that prevented her from managing her own life, the question
Speaker 3: would be where those disabilities are and what impacts they caused?
Speaker 3: Did they make it impossible for her to manage her
Speaker 3: money well given the resources she had? Instead of removing
Speaker 3: her right to manage her money, couldn't they have set
Speaker 3: up a system where she had an accountant or an
Speaker 3: advisor or a fiscal manager to help her do that
Speaker 3: rather than entirely removing her right to do so. If
Speaker 3: the problems were around relationships, what therapy have been a
Speaker 3: better option rather than jumping to removing her right to
Speaker 3: decide what to do with her own body. So of
Speaker 3: course it's shone a light on that, and I hope
Speaker 3: those conversations continue because while the Britney Spears matter was
Speaker 3: going on, people were paying attention, people were asking those questions.
Speaker 3: You know, people I work with wanted to know, shouldn't
Speaker 3: I be treated the same way as Britney Spears was.
Speaker 3: In other words, there are lots and lots of people
Speaker 3: who aren't pop stars who have lost their rights. Britney
Speaker 3: got them back after a very long time. Other people
Speaker 3: are asking why can't I have that same opportunity as
Speaker 3: a pop star. So the short answer to your question
Speaker 3: is yes. The longer answer is I hope it continues,
Speaker 3: It's a conversation we need to have here.
Speaker 1: The two weis are saying through their attorney that Or
Speaker 1: attempted a shake down, and they have so much money
Speaker 1: they don't need anymore. What kind of excuses do you
Speaker 1: ordinarily hear in these cases?
Speaker 3: I mean the vast majority of guardia it's coming involved money.
Speaker 3: I mean we hear about ones that do. We hear
Speaker 3: about Britney Spears, We hear about Michael Or in New York,
Speaker 3: we hear about the artist Peter Mack. But the vast
Speaker 3: majority of cases, the people who don't have that kind
Speaker 3: of money. The people I represent and work with aren't rich.
Speaker 3: They're just people who've lost their rights. So the comeback
Speaker 3: usually is, this person needs a guardian, needs a conservative,
Speaker 3: this person has a disability to this person has this
Speaker 3: or has that, or needs this or needs that. It's
Speaker 3: for their own good. Those are the things I hear.
Speaker 3: I mean, the Michael Or case, the Britney Spears cases
Speaker 3: are obviously higher profile because they involve famous people. They're
Speaker 3: obviously higher profile because they involve people with money. But
Speaker 3: I will tell you that ninety eight percent of the time, no,
Speaker 3: it's just someone who someone meant well and thought they
Speaker 3: needed something that maybe they didn't need. And what the
Speaker 3: argument comes down to is whether a person truly needs
Speaker 3: a guardianship of conservativeship or ever did the heartbreaking cases
Speaker 3: where a child is competing against the parents. A young
Speaker 3: woman I've represented named Jenny Hatch who was the first
Speaker 3: person to defeat a petition for guardianship a trial because
Speaker 3: she uses an alternative called supported decision making. It's horror
Speaker 3: family apart because her family thought she needed a guardian
Speaker 3: she didn't. Ten years later, she is still living free
Speaker 3: and showing the example of what can happen when people
Speaker 3: are empowered to make their own decisions. That's a very
Speaker 3: long way of saying which people do things differently, celebrities
Speaker 3: do things differently. The reasons we hear in a Michael
Speaker 3: Orr case are very different and the reasons we hear
Speaker 3: in most cases. And I hope cases like Michael Orr
Speaker 3: and like Britney Spears shine a lights that help all
Speaker 3: those other people, the ones who ask what about me?
Speaker 3: What about the situation in my life? Who's going to
Speaker 3: pay attention to that when that happens, will have a
Speaker 3: new day.
Speaker 1: It seems like people are put into guardianships a lot
Speaker 1: of the time, time quickly and by default. How difficult
Speaker 1: is it to get out of a guardianship for the
Speaker 1: normal average person?
Speaker 3: Hard, It takes time is usually usually the way out
Speaker 3: of a guardianship or a conservativeship. And I keep us
Speaker 3: two terms of changeably, by the way, they essentially mean
Speaker 3: the same thing. It just means what they call it
Speaker 3: in that state in California and Tennessee where Britain's There's
Speaker 3: and Michael Orrar they refer to it as conservativeship. Most
Speaker 3: other states call it guardianship. When you hear those terms,
Speaker 3: just think one person giving the legal right to make
Speaker 3: decisions for another. Usually the way out of those is
Speaker 3: you have to show that you have quote unquote been
Speaker 3: restored to competency, that you can now make decisions for
Speaker 3: yourself and manage your own life for yourself. Well forever,
Speaker 3: that term restored has kind of been viewed as cured,
Speaker 3: and if you have an intellectual disability, if you have
Speaker 3: a development disability, down syndrome, intellectual disability, servebral palsy, you
Speaker 3: don't get cured. So the thought was if you went
Speaker 3: into guardianship or conservatorship at eighteen you're going to be
Speaker 3: into the rest of your life. Some of the ways
Speaker 3: that we have used to work with people, it's to
Speaker 3: show they never should have been in the first place,
Speaker 3: that they've always had competency, or they've developed strategies and
Speaker 3: support systems that give them that competency. But man, that
Speaker 3: takes time. You have to have, usually an expert willing
Speaker 3: to testify that this person can do it. Sometimes it
Speaker 3: takes money. And again for the people I work with
Speaker 3: and so many other people work with, that money isn't there.
Speaker 3: We have to find other ways. So I tell people
Speaker 3: the best way out is never to go in in
Speaker 3: the first place, and if you want out, you have
Speaker 3: to hope for a lot of good fortune and an
Speaker 3: understanding judge.
Speaker 1: What seems really odd to me about this is that
Speaker 1: the conservatorship has been in effect for nearly two decades
Speaker 1: and the two'es never sought to unwind it.
Speaker 3: That's the biggest question for me. If they were just
Speaker 3: never going to bother unwinding until it got spotlighted, what
Speaker 3: does that say about the attitude towards this person's right.
Speaker 3: They didn't think about it. If we give them the
Speaker 3: best of motivations, they just didn't think about it. They thought,
Speaker 3: you know, this is what's good for him, or we
Speaker 3: never got around to unwinding it because no one ever
Speaker 3: asked for me. Every guardian and every consertor's obligation and
Speaker 3: this is written in most walls, by the way, is
Speaker 3: to help the person, not just make decisions for the person,
Speaker 3: but maximize that person's opportunities to make decisions, help that
Speaker 3: person regain abilities or gain the abilities. And then if
Speaker 3: the person has done it, if there comes a time
Speaker 3: when the person no longer needs it. And certainly that
Speaker 3: sounds like the family knew the situation in Michael Lare
Speaker 3: because they're so willing to get rid of it. Well,
Speaker 3: when you realize it's not needed, shouldn't your obligation to
Speaker 3: be to go back to that judge you signed the
Speaker 3: order in the first place and say, good news, Judge,
Speaker 3: I did my job. Now you can fire me. If
Speaker 3: we looked at guardianship of conservoship that way, you'd have
Speaker 3: no bigger fan than me. Because some people do need
Speaker 3: that level of assistance until they get it. Some people
Speaker 3: do need extra support until they get it. What a
Speaker 3: great system it would be if we would be able
Speaker 3: to give people that support, and when they no longer
Speaker 3: needed it to say I did my job, you can
Speaker 3: fire me.
Speaker 1: Being a lawyer trying to terminate these conservatorships sounds like
Speaker 1: it might be a little bit depressing.
Speaker 3: I've been practicing law for a very long time, and
Speaker 3: I almost never see judges happy. Judges by definition, aren't
Speaker 3: very happy. That's supposed to be happy. I'll tell you
Speaker 3: when they're happy. Citizenship ceremonies, adoptions, marriages, and restoration of rights,
Speaker 3: because in all of those, they're making a citizen, they're
Speaker 3: making a family, they're giving people an opportunity, and judges
Speaker 3: love that. So there's a lot of joy in this
Speaker 3: amidst all the heartbreak, and I hope more people get
Speaker 3: to experience.
Speaker 1: But thanks Jonathan. That's Jonathan Martinez, Senior director for a
Speaker 1: Law and Policy at the Burton Blatt Institute at Syracuse University.
Speaker 1: A police raid on August eleventh brought international attention to
Speaker 1: the Marion County Record, a weekly newspaper, and the small
Speaker 1: Kansas town of nineteen hundred, putting it in the center
Speaker 1: of a debate over press freedoms. Police seized computers, personal
Speaker 1: cell phones, and a router from the newspaper. All items
Speaker 1: were released Wednesday after the county prosecutor concluded there wasn't
Speaker 1: enough evidence to justify the action. The police chief had
Speaker 1: alleged in court documents that a reporter either impersonated someone
Speaker 1: else or lied about her intentions when she obtained the
Speaker 1: driving records of a local business owner. The newspaper's attorney
Speaker 1: said the reporter's actions were legal under both state and
Speaker 1: federal laws. Joining me is First Amendment law expert Eugene Vollock,
Speaker 1: a professor at UCLA Law School. In this case, I
Speaker 1: mean they came in, They collected computers, cell phones, and
Speaker 1: other materials from the newspaper's office, the home of its
Speaker 1: owner and editor. And it was based on an investigation
Speaker 1: into how the newspaper got a document containing information about
Speaker 1: a local restaurant owner in a two thousand and eight
Speaker 1: conviction for drunk driving. Is this so unusual? And I
Speaker 1: want to say overkills the only word I can think of.
Speaker 2: Well, hard to know for sure whether it was overkill
Speaker 2: or not without knowing all the facts. Although it does
Speaker 2: look like even the government lawyers have concluded this was overkilled.
Speaker 2: It does appear to be pretty unusual. Let's step back
Speaker 2: a little bit. As a general matter, if somebody has
Speaker 2: evidence of a crime, or more precisely, if there is
Speaker 2: probable cause to believe that they have evidence of a crime,
Speaker 2: then the government can get a search warrant to search
Speaker 2: the property for this evidence. That's pretty routine, and newspapers
Speaker 2: don't have any special First Amendment defense against these kinds
Speaker 2: of searches, or to be precise, newspapers aren't categorically protected
Speaker 2: by the First Amendment against these kinds of searches. There
Speaker 2: was a case in the nineteen seventies called Zurcher we
Speaker 2: Standford Daily, where a newspaper said, you can't search our files.
Speaker 2: We're a newspaper, We're protected by the First Amendment. And
Speaker 2: the court said, look, you don't get any more or
Speaker 2: less protection under the First Amendment than anybody else. Now.
Speaker 2: To be sure, whenever the government is searching for and
Speaker 2: trying to seize First Amendment protected activity for example, or
Speaker 2: First Amend protected materials for example, allegedly obscene literature or
Speaker 2: some such there are some extra protections that are offered there,
Speaker 2: but there's no categorical First or Fourth Amendment protection against
Speaker 2: searches of bookstores or searches of newspapers in the life. However,
Speaker 2: there is a federal statute that does provide some quite
Speaker 2: broad statutory protection, and it says essentially that the government
Speaker 2: may search and seize material that are related to possessed
Speaker 2: by essentially newspapers, book publishers, and like only in very neurosurpus.
Speaker 2: One of them is if there's reason to believe that
Speaker 2: the person possessing them, say the newspaper, is committing a
Speaker 2: crime or has committed a crime to which the materials relate,
Speaker 2: and that crime has to be something beyond just received possession,
Speaker 2: communication or withholding up the materials. So if people think
Speaker 2: that the newspapers I don't know, engaged in tax evasion,
Speaker 2: well then they can seize the records and maybe they
Speaker 2: can even seize other materials that are related to what
Speaker 2: the newspaper does in order to see if they're evading taxes.
Speaker 2: If there's suspicions that the publisher of the newspaper has
Speaker 2: committed some other crime, then in that case they could
Speaker 2: search for evidence of that crime. But if the only
Speaker 2: suspicion is, oh, this person maybe let's say, is the
Speaker 2: recipient of an unauthorized leak, then that's not enough. There's
Speaker 2: also an exception for situations where immediate seizure is necessary
Speaker 2: to prevent death or serious bodily injury, and then a
Speaker 2: couple of exceptions for situations where subpoenas don't seem likely
Speaker 2: to succeed, therefore a search warrant is required. So under
Speaker 2: the statue, generally speaking, of the government does think that
Speaker 2: there's information that a newspaper possesses that, generally speaking, is
Speaker 2: should proceed by a subpoena ordering the newspaper to turn
Speaker 2: it over rather than through a search warrant.
Speaker 1: So in this case, there was a search warrant that
Speaker 1: was issued by a judge, but what was cited was
Speaker 1: potential violation of laws involving identity theft and the illegal
Speaker 1: use of a computer.
Speaker 2: Well, it certainly does appear that the warrant was not
Speaker 2: justified because again the local prosecutor's office, I want to
Speaker 2: say it to the county attorney's office, has asked for
Speaker 2: the warrant to be withdrawn because it concluded the Marion
Speaker 2: County Attorney concluded that insufficient evidence exists to establish a
Speaker 2: legally sufficient nexus between the alleged crime and the places searched.
Speaker 2: And the item seized, which is to say that there's
Speaker 2: no basis for a warrant, And again that should apply
Speaker 2: regardless of whether it's a newspaper or not. Right, if
Speaker 2: they searched my house for things completely unrelated to any
Speaker 2: publishing work that I do, and it turns out that
Speaker 2: there's no sufficient nexus between my house and any evidence
Speaker 2: that they're looking for, that's an invalid warrant as well.
Speaker 1: The newspaper says that it was investigating the police chief
Speaker 1: and he had threatened to sue them, and that's why
Speaker 1: this came about.
Speaker 2: But right, I can't speak to that.
Speaker 1: Right, But my question is if the police chief was
Speaker 1: investigating how the newspaper got this information about a drunk
Speaker 1: driving conviction in two thousand and eight, would that be
Speaker 1: enough to get a warrant?
Speaker 2: Well, let's say there's probable cause to believe that they
Speaker 2: actually hacked into some computer. Then in that case there
Speaker 2: would be enough presumably by a hypothesis, there's a probable
Speaker 2: cause to believe that and probable cost to believe there's
Speaker 2: evidence of that in the newspaper's records. In that case,
Speaker 2: there'd be enough to satisfy the Fourth Amendment, because you
Speaker 2: can get a warrant based on probable cause? What about
Speaker 2: this federal statute forty two Usc. Two thousand and AA. Well,
Speaker 2: one question is whether there's probable cause the person is
Speaker 2: committing or has committed a crime beyond just receipt, possession, communication,
Speaker 2: or with holding of the materials, And then there'd be
Speaker 2: an interesting question, does for example, hacking into a government
Speaker 2: computer involve more than just illegal receipt of information? Yes,
Speaker 2: I'd say probably so, because that's illegal access to a
Speaker 2: government computer. So you can imagine situations in which a
Speaker 2: search world would be authorized both under the Fourth Amendment
Speaker 2: and under this federal statute, and of course it would
Speaker 2: have to comply with state law as well. It just
Speaker 2: sounds like at this point the attorney has reviewed matters
Speaker 2: and said, you know, there's just really not enough basis
Speaker 2: for it.
Speaker 1: Can the newspaper sue the police department?
Speaker 3: Now?
Speaker 2: Well, I think a lot depends on the particular circumstances.
Speaker 2: I don't have enough facts to be able to speak
Speaker 2: to that with confidence, but in principle, you could imagine
Speaker 2: that they might be able to sue. To be sure,
Speaker 2: if the police search pursued into a valid warrant, then
Speaker 2: in that case, there's a good faith defense under the
Speaker 2: Fourth Amendment. But let's say the police did not provide
Speaker 2: accurate information, or the warrant was transparently invalid, or some
Speaker 2: such an in principle, you could imagine such a lawsuit,
Speaker 2: but we'd have to know a lot more factual detail.
Speaker 1: It's understandable why so many media outlets were up in
Speaker 1: arms about this. I mean, has this happened before? Have
Speaker 1: we seen in recent times raids like this?
Speaker 2: You know, I do not recall them. It's a big country,
Speaker 2: and maybe there were some raids that didn't hit the
Speaker 2: news or hit the news but didn't hit my consciousness.
Speaker 2: But I do think it's quite unusual, generally speaking, partly
Speaker 2: because of this federal statute and partly just because, you know,
Speaker 2: government officials often want to be treated well by newspapers,
Speaker 2: so they often treat the newspaper as well as well.
Speaker 2: My understanding is these kinds of rates are very rare.
Speaker 1: I mean, it could have stopped them from publishing because
Speaker 1: they took the computers, they had to borrow computers.
Speaker 2: According to news accounts, they actually managed to publish on
Speaker 2: their normal publishing schedule. It was hard, but they managed
Speaker 2: to do that. But yes, in principle, if they see,
Speaker 2: if the computer sees all of the documents, it may
Speaker 2: stop the newspaper from publishing. And there the Supreme Court
Speaker 2: has said, yes, you know, if that's the issue that
Speaker 2: might raise important First Amendment question.
Speaker 1: There are so many questions here and the investigation is ongoing,
Speaker 1: both on the state side and the newspapers side. Thanks
Speaker 1: so much, Eugene. That's Professor Eugene Volik of UCLA Law School,
Speaker 1: and that's it for this edition of The Bloomberg Law Show.
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