Tampa federal judge declines to dismiss Tim Burke indictment

Yahoo

14-04-2025

TAMPA — A federal judge has declined to dismiss the indictment against Tampa media consultant Tim Burke, finding that a jury should decide whether he committed crimes by publishing videos, including unaired Fox News footage.
U.S. District Judge Kathryn Kimball Mizelle, in a 35-page order issued Monday, noted that a grand jury found probable cause to believe that Burke's conduct was criminal and therefore is not protected under the First Amendment.
Amid a complex legal analysis, the judge cited case law that puts the burden on Burke to prove that the videos at the center of the case were readily accessible to the public.
The judge also granted a request Monday to postpone Burke's trial, which had been set for June. In a court hearing last week, his attorneys said they needed more time to sort through the massive amount of computer material seized as evidence in the case. They pegged the size of the material at more than 30 terabytes, the equivalent of one trillion data bytes, much of it consisting of lengthy videos.
Mizelle reset a pretrial conference for late August, with the trial set to begin in early September.
'The judge has made us prove that the defendant is not guilty,' Burke's attorney, Mark Rasch said Monday. 'We welcome the opportunity to do that in late August.'
The judge's ruling follows one she made in November, denying a request from Burke's defense to toss the evidence that investigators obtained when they searched his home. The defense argued that the government omitted key details when they applied for the search warrant, namely Burke's status as a journalist and the First Amendment implications of the search.
Burke, 46, is a nationally recognized media consultant who runs Burke Communications from his Seminole Heights home. He is well-known for finding and promoting obscure videos online and has done work for HBO and ESPN, among other clients, and worked as a journalist for the Daily Beast and DeadSpin.
Almost two years ago, FBI agents searched the home Burke shares with his wife, Tampa City Council member Lynn Hurtak. The agents seized much of Burke's home studio, including numerous computers.
The Tampa Bay Times later reported that the search related to alleged computer hacks of Fox News videos. The intercepted videos, which Burke later published online, included behind-the-scenes footage of Tucker Carlson on his defunct show on the network and clips from an interview Carlson conducted with Kanye West in which the rapper makes antisemitic comments.
In February 2024, a grand jury indicted Burke on 14 federal charges, including conspiracy; accessing a protected computer without authorization; and intercepting or disclosing wire, oral or electronic communications. The indictment alleged that Burke conspired with a Washington man, Marco Gaudino, to use compromised computer credentials to obtain protected video streams, then publicly disseminated clips.
Court records and proceedings have revealed that the intercepted videos also included game footage from the National Basketball Association. At least one other unnamed TV network is also referenced as a victim in court records.
Gaudino last year pleaded guilty to a single conspiracy charge and agreed to cooperate with prosecutors in their case against Burke. The pair didn't know each other and only communicated via Twitter, their attorneys have said.
Lawyers for Burke have argued that the videos were publicly available on a streaming platform, which he accessed using credentials that were posted online. They insist that he is a journalist and that the case infringes on his free speech rights.
The judge also denied Burke's arguments that the wording of the indictment was insufficient because it did not specify that the videos were taken without the consent of their owners.
In Monday's ruling, Judge Mizelle noted a 2001 Supreme Court decision, known as Bartnicki v. Vopper, which held that the First Amendment protects people who publish information that was intercepted illegally by a third party. She refused to extend that case to Burke's situation, reasoning that Burke is accused of partaking in the alleged illegal interception.
But she also critiqued the case itself, opining that there is 'reason to doubt' that the Bartnicki case is consistent with 'the original understanding of the First Amendment.'
'In the intervening decades since that decision,' Mizelle wrote, 'both the opportunity and incentive to anonymously obtain and later disclose communications has grown exponentially and, with those rises, Congress's corresponding interest in deterring that public harm.'
Elsewhere in the ruling, Judge Mizelle knocked down Burke's arguments that the indictment was insufficient because the grand jury did not specify that he obtained the material 'without consent' or that was not 'readily accessible,' which are both exceptions to the law on intercepted communications.
'Burke is wrong twice over,' the judge wrote.
Citing case law, the judge wrote that it is up to Burke to demonstrate that those exemptions apply to his case. She noted that Burke touts his ability to find and publish obscure online videos.
'As a result, I suspect much of the trial will be devoted to presenting evidence of how Burke obtained the electronic communications,' Mizelle wrote. 'Naturally, Burke is uniquely better equipped to adduce evidence about how he went about getting the communications. The jury then must decide whether those communications were 'readily accessible to the general public.''