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According to Terry Francke, legal counsel for the California First Amendment
Coalition, no government agency has such authority. “There’s no law that permits
anyone to summarily confiscate a camera or film or order the destruction of that
film,” Francke said.
While Barker acknowledged that the guardsman was wrong to force the deletion
of the photographs, he knew of no pending disciplinary action in the case. “If
there was, I’m not sure we would release it,” he said.
Francke also said that the Guard and the LAPD may have violated a California
statute designed to protect the “unpublished information” of journalists. The law,
California Penal Code § 1524, prohibits judges from issuing search warrants for
“notes, outtakes, photographs, tapes and other data of whatever sort not itself
disseminated to the public through a medium of communication.”
“Clearly, they had no right to do what they did,” Francke said. “Under California
Law, journalists are free from search and seizure directed at unpublished
information.” He added that the guardsman and the LAPD officers also failed to
comply with federal law, which states that the U.S. Attorney must exhaust all
other means (such as issuing a subpoena) to obtain unpublished material before
allowing a law enforcement agency to seize it without a warrant.
While now might not seem like the ideal time to pursue such a case, Francke
said that in the long haul, it might be in the public’s best interest. “People caught
up in war fervor and the opportunity to express solidarity with national security
are probably going to see this story as a sign of reassurance--until they get
caught with a camera in their bag or staring at a plainclothes policeman too
long,” Francke said.
“If, as we all hope, this particular hijacking threat recedes and nerves return
closer to normal, I do think people will maybe turn their minds back on and
acquire some common sense.”