US District Judge Kathryn Kimball Mizelle—appointed to the Middle District of Florida by Trump during his first term—dismissed seven of the 14 charges against Tampa-based media consultant and journalist Timothy Burke on Thursday.
Burke was arrested and charged last year after obtaining and disseminating unaired 2022 footage from Tucker Carlson’s former show on Fox News, including antisemitic remarks by Ye, the rapper formerly known as Kanye West.
“In this case, the government argues that it can prove a Wiretap Act violation solely by showing that a defendant intentionally acquired a communication using a device and that the many exceptions to the Wiretap Act are not elements of the crime but instead defenses to be raised by a criminal defendant,” the judge wrote. “Significant First Amendment concerns arise if I were to adopt the government’s theory.”
“The court recognized that the government’s theory not only posed serious threats to press freedom, but also to anyone engaged in everyday internet activity.”
Seth Stern, director of advocacy at the Freedom of the Press Foundation, explained that “the prosecution’s theory would have allowed not only journalists but anyone who watched a livestream to be forced to defend themselves in court to stay out of prison. It would be naive to think the government wouldn’t abuse that kind of power.”
Stern expressed relief at the judge’s dismissal decision, while Yanni Chen, legal director at the group Free Press, called it “a crucial victory for the First Amendment—for journalists, for internet users, and, most immediately, for Timothy Burke.”
“The court recognized that the government’s theory not only posed serious threats to press freedom, but also to anyone engaged in everyday internet activity,” Chen said. “At a time when journalists face increasing risks for doing their jobs of holding power to account, this ruling affirms the essential protections they deserve and sends a clear message: The law cannot be twisted to criminalize newsgathering.”
Jennifer Stisa Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project, also pointed to threats under the current US government, saying that “now is a time when press freedom is in jeopardy and it’s essential that courts stop prosecutors from twisting the law to silence news the government doesn’t like.”
“The Wiretap Act protects our privacy; it doesn’t criminalize journalists whose reporting relies on online sources,” she stressed. “Tim Burke’s case isn’t the first example of this kind of abuse, but hopefully it will be the last.”
In a social media post late Thursday, Burke thanked not only his “overworked and underpaid legal team” but also the press freedom groups that submitted amicus briefs in this case.
Burke also stressed that the case against him continues, saying, “To be clear, only the wiretap charges (which were half of the total) have been dismissed, though they were certainly the far more serious of the allegations and I’m grateful the court has found them to be deficient.”
Last month, Judge Charlene Edwards Honeywell—appointed to the Middle District of Florida by former President Barack Obama—sentenced Marco Gaudino to five years of probation with a year of house arrest for his role in helping Burke gain unauthorized access to the videos. Gaudino pleaded guilty to a single conspiracy charge and agreed to cooperate with prosecutors against Burke.
