The first 10 amendments to the U.S. Constitution were proposed and ratified as a package, and many of the rights are mutually enforcing. Such is the case with the First Amendment freedoms of speech and press and the Fourth Amendment prohibitions against general warrants and other unreasonable searches and seizures.
Justice Department seizes Washington Post reporter’s laptops, phone
This relationship is evident in a 2026 case involving Hannah Natanson, a reporter for the Washington Post, who calls herself a “federal government whisperer.”
After Natansan shared her contact information on sites accessible to numerous federal employees, Natanson developed almost 1,200 confidential sources, most of whom communicated through Signal. As the Trump Administration sought to identify and terminate employees who were disclosing governmental information, Attorney General Pam Bondi rescinded the Biden Administration policy prohibiting the use of compulsory process against journalists. She replaced it with regulations that permitted the Department of Justice to seek search warrants for leaks of both classified and unclassified information.
In seeking information about Aurelio Luis Perez-Lugones on charges that he unlawfully retained national defense information, the Department of Justice sought a search warrant for information that it thought Natanson might possess.
On the third try, the court found sufficient probable cause to approve such a warrant. The government seized two laptops, a mobile phone, a portable drive, a recording device and an exercise watch, which Natanson sought to recover.
Counsel for the Washington Post advised that the items seized contained information protected by the First Amendment and the attorney-client privilege and sought to keep the government from viewing it. It secured a standstill order that prevented the government from destroying or reviewing the materials until a court could sort through the issues.
Judge prevents government’s search of journalist's devices
The case was decided by William B. Porter, a magistrate judge for the U.S. District Court for the Eastern District of Columbia, who had been serving since Nov. 21, 2023, He observed that the “case sits at the intersection of the government’s compelling interest in prosecuting the unlawful disclosure of classified national security information and a working journalist’s First Amendment rights.”
Citing the presumption against prior restraint that had been invoked in New York Times v. United States (1971), the Pentagon Papers case, he noted that “this is not purely a prior restraint case, because this case involved an ongoing criminal investigation.”
He had to decide whether the government could seize information in such a case involving prosecution under the Espionage Act to keep it from being destroyed, and whether if such information was stored with unrelated files related to the reporter’s First Amendment rights and the attorney-client privilege, who should “locate and extract it?”
The judge was particularly concerned that, in applying for its search warrant, the government had not identified or analyzed the Privacy Protection Act of 1980 (PPA), which undermined his confidence in the government’s disclosure in the proceedings. That law and the Department of Justice’s Justice Manual required authorization at all levels before the government would issue a search warrant to a member of the press. It also prohibits governmental officers from “seizing ‘work product materials’ or ‘documentary materials’ possessed by a person ‘reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communications.” In such cases, the law preferred “subpoenas over search warrants.” A subpoena provides for advance notice and the right to challenge the search before it occurs.
Because the government had not identified the Privacy Protection Act rules or the fact that Natanson was not herself a target of the investigation when it first sought the warrant, the judge could no longer be sure that it should have been issued.
Judge will conduct independent review of material
Although he did not think the seized instruments should be returned without a review to ascertain whether they contained classified information that might endanger national security, the judge was not confident that this task could be carried out by the same government that had previously withheld relevant information from his court.
Acknowledging that the government’s actions had implicated Natanson’s First Amendment rights, Judge Porter also acknowledged that “the Supreme Court has never recognized absolute press immunity from legal constraints.”
Recognizing that “An appropriate search process must account for the need to identify and protect classified information before any materials are returned,” the judge also said that this “does not mean that in all cases the government gets to conduct that search.” The Fourth Circuit Court had decided in the Baltimore Law Firm Case of 2019, 942 F.3d 159, that a judge could not approve a government filter team protocol to proceed in surveying such materials without notice to the other party. It had decided that magistrate judges who are “judicial officers and neutral arbiters with no stake in the investigation’s outcome” were better positioned than the government to conduct such a review.
To allow the government to comb through all the materials on its own would be the type of general warrant the Fourth Amendment had rejected. Indeed, it would be “the equivalent of leaving the government’s fox in charge of the Washington Post’s henhouse.” He further observed that “The concern that a filter team may err by neglect by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake.” The judge concluded that his own court should conduct this review.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.