A federal judge overseeing a criminal case involving former Deadspin editor Timothy Burke has declined the journalist’s request to have his criminal case dismissed.
In a 35-page order issued on Monday, U.S. District Court Judget Kathryn Mizelle said a 14-count indictment issued by a grand jury over Burke’s collection and dissemination of non-public video clips belonging to Fox News Media was legally sufficient and did not violate the journalist’s First Amendment privilege to news-gathering and reporting.
Prosecutors have accused Burke of colluding with a Washington-area resident to scour the Internet for usernames and passwords belonging to media organizations and similar stakeholders, then using those credentials to accesses non-public materials. At least one password allow Burke to access video streams related to programming aired on Fox News, including “Tucker Carlson Tonight,” which the channel aired until two years ago.
Through his attorneys, Burke has denied any wrongdoing. He does not dispute that he recorded raw Fox News video feeds, and affirmed being the source of materials that were later published by Vice News and Media Matters for America under the “Fox Leaks” franchise and others.
The video clips painted Fox News and Carlson in an unflattering light. In one clip, Carlson disparaged Fox Nation, the streaming platform where he hosted an interview program that was separate from his cable news show. Another clip showed Carlson interviewing rapper Kanye “Ye” West, during which the musician made anti-Semitic remarks — comments that were edited out of the final interview broadcast on Fox News.
Last year, Burke’s legal defense team filed two motions seeking to have the criminal counts dismissed. In one motion, lawyers argued that some of the counts violated Burke’s constitutionally-protected practice of disseminating newsworthy information — even though he did not reveal himself as the source of the Fox News clips until after the criminal case was brought. Burke’s lawyers also argued the indictment charged conduct that was not covered by a criminal statute.
Judge Mizelle dismissed those concerns, finding all the criminal counts were justified under existing federal law. She noted that Burke was not being charged for publishing or providing to others newsworthy materials in his capacity as a journalist, but was instead being prosecuted for how he obtained those videos in the first place.
The First Amendment only applies when a party “lawfully obtains and then publishes” newsworthy information, Mizelle wrote. Here, Burke is accused of unlawfully obtaining, and then allowing others to publish, the Fox News video clips — which are sufficient to justify a criminal prosecution.
Burke’s defense team attempted to use at least one Supreme Court case in their justification that the case was unlawful on First Amendment grounds, but Mizelle found that the Supreme Court “has suggested that the First Amendment may not apply when the defendant unlawfully obtains the information,” as Burke did.
“In this case, the grand jury found probable cause that Burke played a ‘part in the illegal interception’ of the subsequently disseminated material and charged him with five counts,” Mizelle wrote.
Mizelle also dismissed Burke’s assertion that he didn’t know what he was being charged with because of overlapping counts, some of which restate his alleged actions, but on the basis of different crimes. The indictment makes clear that Burke is being charged with, among other things, “intentionally (intercepting)…the contents of a wire, oral and election communication as it was occurring, by means of a device, namely a computer.” That alone was enough for Burke to know what he was being charged with, Mizelle concluded. She also found Burke’s claim that his conspiracy count should be dismissed unpersuasive, because the indictment alleged he worked with another person over social media to obtain and illegally use online credentials.
In a separate order, Mizelle ruled on a supplemental motion to dismiss by Burke’s attorneys, which argued six counts related to the intercepting of the Fox News videos should be dismissed because they alleged differing offenses of intercepting “oral” and “electronic” communications. His lawyers argued that a jury might confuse the various counts because they alleged similar behavior, though they’re charged as separate crimes.
Mizelle was unconvinced, saying the indictment was clear about what crimes were being charged, even if they all fell within the same statute and definition. Even if the counts were duplicitous, Mizelle said it was for a jury to decide, and that the matter could be remedied at trial by instructing the jury to weigh each count on its own basis.
“Burke does not explain why clear jury instructions accompanied by a special verdict form providing that the offenses are mutually exclusive would not cure any duplicity,” Mizelle wrote.
The dismissal of Burke’s motions to dismiss sets the stage for the case to go to trial, which was scheduled for June but has since been pushed out to September. His alleged co-conspirator in the case, Marco Gaudino, reached a plea deal with prosecutors last year.
Burke’s defense attorneys have not commented on the matter. Throughout his two-year ordeal, his legal team have characterized the case as one involving press freedom, while government prosecutors have alleged Burke acted beyond the scope of a journalist by committing a crime to obtain materials he, independently, valued as newsworthy.
On Monday, Burke encouraged his social media followers to donate to various local charities in recognition of a local event called the Charity Bowl, writing that he was unable to do so “on account of fighting for press freedoms.”
