Affidavits targeting Marion County Record read like bad jokes at expense of the First Amendment

Police Chief Gideon Cody promised explosive revelations after his flabbergasting raid on the Marion County Record.

“As much as I would like to give everyone details on a criminal investigation I cannot,” he thundered on the department’s Facebook page. “I believe when the rest of the story is available to the public, the judicial system that is being questioned will be vindicated.”

With the release of his probable cause affidavits over the weekend, we can see all Cody delivered was a watery belch of unconstitutional guff.

Where do we even begin? Most of the details had already been reported by both the Record and Kansas Reflector on Aug. 11, the day of the raid. A reporter’s attempts to confirm a DUI record for an unpublished story couldn’t possibly justify what Cody and Magistrate Judge Laura Viar did. Remember, they ran roughshod over the First Amendment to shut down a news outlet. They tried to intimidate its publisher and staff. It looks like they thought the rest of us would be too busy with TikTok dances to notice.

Max Kautsch, president of the Kansas Coalition for Open Government, pointed out Sunday that “trying to determine exactly which charges the affidavit contemplates is daunting.”

Oh really? Tell us more.

“It’s clear that the Record’s reporter did not violate the provisions of K.S.A. 21-5839 prohibiting access to computer systems ‘without authorization’ because she accessed the restaurant owner’s driver’s license information under an exception to the (Drivers Privacy Protection Act),” Kautsch wrote in an email. “Under that law, access to a third party’s driving record is permitted ‘For use in research activities … so long as the personal information is not published, redisclosed, or used to contact individuals.’ Here, the reporter accessed the restaurant owner’s driving record, but did not publish that information. Thus, there was no probable cause to believe that computer crimes were committed.”

He then notes one of Cody’s sleights of hand in compiling the document: “Tellingly, although the affidavits references exceptions to the DPPA, it cites language on a state website, not the language included in the federal statute itself. That language incorrectly suggests that only research activities in the furtherance of creating statistical reports are exempt. But the exception exists for research generally, such as when a reporter seeks to verify information provided by a source.”

In other words, the whole justification for police raids — not just on the Record but on the homes of publisher Eric Meyer and city councilwoman Ruth Herbel — crumbles into ash at a cursory examination.

No wonder Marion County attorney Joel Ensey withdrew the search warrants and ordered all the evidence returned.

Sensible advice ignored

Don’t worry, there’s more.

Cody apparently couldn’t file the affidavit without including a quote that makes Meyer sound like a mafioso.

The document claims the publisher threatened restaurateur Kari Newell, whose driving record sits at the center of this small-town soap opera, thusly: “If you pursue anything I will print the story and will continue to use anything I can to come at you. I will own your restaurant.”

Color me skeptical. According to a Washington Post story, Meyer denied making that statement. He did, however, warn her against targeting the newspaper and said, “Kari, I don’t think it’s a good idea to be making a big fuss about this.”

That sounds like good, straightforward advice to me. She might have avoided international scrutiny had she listened.

For more on the affidavits, I recommend editor Sherman Smith’s story from Sunday. It even includes a cast of characters if you’ve become confused from all the drama. Just a warning: You will encounter three Enseys, two Myers and a U.S. representative who really, truly didn’t orchestrate the raid as a nefarious mastermind.

You might have noticed my somewhat jovial tone today. I can’t take Cody’s probable cause affidavits seriously, so I’m not going to write about them as such. Did you know that after police raided the Record office and carted away computers and phones, they left behind a printed-out version of the social media tip that started the whole nonsensical muddle?

One might wonder whether they even cared about potential ID theft.

“It’s incredibly concerning though for press freedom, both in Kansas and the United States, when something like this happens,” said Katherine Jacobsen, U.S. and Canada program coordinator for the Committee to Protect Journalists.

She lent a hand in Marion last week.

“When something like this happens it, I think, has a very chilling effect on journalism, and both highlights the importance of local news and that role local journalists play in their community as kind of speaking truth to power,” she said. “But at the same time, it also highlights a very difficult situation that a lot of local journalists find themselves in, as far as trying to continue to do their jobs.”

The Marion County Record has persisted for 154 years. Only two families have owned it since 1874, the Hochs and the Myers. It is an institution. At one point, most newspapers in Kansas were like this, deeply rooted in their communities through shared family history. Few remain so today.

The Record is the newspaper equivalent of a giant redwood or natural rock formation. It should be treasured and valued, and it is not easily replaced.

No joke of an affidavit can change that.

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.