In the Washington Post reporter’s search warrant case, the district court held, inter alia, that the overbroad seizure of material was at least First Amendment privileged, and it was ordered returned. In re Natanson, 2026 U.S. Dist. LEXIS 113296 (E.D. Va. May 4, 2026):
A. The Seized Material is Likely Privileged and Protected by the First Amendment and Attorney-Client Privilege
The Government does not dispute that the Seized Material likely contains information about Natanson’s confidential sources, information about her colleagues’ sources, conversations with sources, notes, recordings, draft articles, and similar materials. The Movants claim those materials enjoy protections under the First Amendment based on the reporter’s privilege, the doctrine against prior restraint, as well as the PPA. The Government argues that the documents do not enjoy protections under either the First Amendment reporter’s privilege or the doctrine against prior restraint, and that any protections afforded under the PPA do not require judicial review.
The Government’s expansive view of what is permissible under the Fourth Amendment entirely disregards Natanson’s rights under the PPA and the First Amendment, which “entitle[s] news reporters to some constitutional protection of the confidentiality of their sources.” Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000) (“Such protection is necessary to ensure a free and vital press, without which an open and democratic society would be impossible to maintain.”); Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (holding that Sheriff Department’s “seizure” of a newspaper “clearly contravened the most elemental tenets of First Amendment law”); Media Matters for Am. v. Paxton, 138 F.4th 563, 580 (D.C. Cir. 2025) (“[B]ad faith use of investigative techniques can abridge journalists’ First Amendment rights.”); Roaden v. Kentucky, 413 U.S. 496, 501-05, 93 S. Ct. 2796, 37 L. Ed. 2d 757 (1973) (the Fourth Amendment “must not be read in a vacuum” and should be considered against the protections of the First Amendment); see also Marcus v. Search Warrant of Prop. at 104 E. Tenth St., Kan. City, Mo., 367 U.S. 717, 729, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 n.22 (1961) (“[W]here there is even a charge against one particular paper, to seize all, of every kind, is extravagant, unreasonable and inquisitorial. It is infamous in theory, and downright tyranny and despotism in practice.”).
Although a reporter’s privilege “is not absolute and will be overcome whenever society’s need for the confidential information in question outweighs the intrusion on the reporter’s First Amendment interests,” the Fourth Circuit has instructed district courts to conduct the following three-part balancing test in weighing these interests and determining whether that reporter’s privilege can be overcome under the Fourth and First Amendments: “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.” Ashcraft, 218 F.3d at 287 (citation omitted).
The Government argues that the search warrant clearly authorized a search for documents and information “relevant” to its law enforcement duties, namely “classified and/or national defense” materials during a specified time period relating to Perez-Lugones, see [Doc. No. 4] at 4, and therefore, “the warrant impliedly authorized officers to open each file on the computer and view its contents, at least cursorily, to determine whether the file fell within the scope of the warrant’s authorization[,]” even if that information exists among a large swath of information that is unresponsive to the search warrant. [Doc. No. 74] at 17 (citing United States v. Williams, 592 F.3d 511, 521 (4th Cir. 2010)). But here, the only documents “relevant” to the Government’s efforts in investigating Perez-Lugones’ alleged criminal conduct may be as few as a handful of documents, while the non-responsive “irrelevant” newsgathering materials constitute over one thousand documents; and there is no compelling interest in the Government’s reviewing these irrelevant documents if there is an alternative means to identify relevant documents, namely, judicial review. Although it is conceivable that the Government, under certain circumstances and conditions, may be authorized to conduct a search of Seized Material that includes First Amendment or PPA protected documents, the Government has not cited, and the Court has not identified, any case with a seizure comparable in scope and content to the one in this case.
The Government relies heavily on the Fourth Circuit’s opinion in United States v. Sterling, 724 F.3d 482 (4th Cir. 2013). In Sterling, the Fourth Circuit held that a reporter could not invoke his First Amendment privilege to resist a “legitimate, good faith subpoena” to testify about facts relevant to a criminal prosecution. Important for this case is that the Fourth Circuit in Sterling recognized that the subpoenaed testimony at issue went “to the heart of the prosecution” and there was no reason to believe that testimony would “implicate[] confidential source relationships without a legitimate need of law enforcement.” Id. at 499. Here, Natanson, as a reporter, is not resisting testifying or providing relevant information, but rather is resisting the Government’s review of irrelevant material that goes far beyond the stated prosecutorial interest of investigating Perez-Lugones.
