Almost a year after a Tampa federal judge dismissed half the criminal charges against Tim Burke, prosecutors announced Wednesday they would no longer appeal the ruling.
The move was a victory for Burke, a nationally recognized media consultant, whose attorneys maintain he committed no crime by accessing and publishing online video streams, including unaired Fox News footage.
His conduct, they’ve argued, was journalism.
U.S. District Judge Kathryn Kimball Mizelle last year threw out some of the charges on First Amendment grounds.
Assistant U.S. Attorney David P. Rhodes filed a brief court paper Wednesday in the Atlanta-based 11th Circuit Court of Appeals, announcing that the government would no longer contest the judge’s ruling.
The decision came about nine months after the U.S. Attorney’s Office in Tampa first filed notice of its intent to appeal. It is unclear why federal prosecutors decided not to proceed.
The case against Burke will instead return to a district court in Tampa, where he still faces charges of conspiracy and accessing a protected computer without authorization.
“I really wish the government would stop trying to prosecute him and allow him to return to being a good reporter that many people enjoyed reading or listening to,” said Burke’s attorney, Michael Maddux.
Burke, 47, is widely known for his work as a communications consultant. From his Tampa home office, he has done work for clients like HBO and ESPN. He also previously worked for the online news outlets Deadspin and The Daily Beast.
He is married to Tampa City Council member and mayoral candidate Lynn Hurtak and ran her 2023 campaign.
That year, the FBI searched the couple’s Seminole Heights home and seized numerous computers and other devices. Court records later revealed the search was connected to an investigation involving unaired network TV footage that had surfaced online.
The videos included Fox News clips from an interview that the network’s ex-host Tucker Carlson conducted with Ye, the rapper formerly known as Kanye West. In the clips, Ye made antisemitic statements, which never aired.
Burke later sold the videos to Vice News, according to court records.
In 2024, federal prosecutors obtained an indictment that accused Burke of using compromised computer credentials to access videos on LiveU, a streaming service. He shared some video clips online.
A Washington man, Marco Gaudino, was labeled a co-conspirator. He and Burke had chatted via social media about accessing the videos. Gaudino, 27, later pleaded guilty, agreed to testify and was sentenced to house arrest and probation.
Burke’s defense has argued he obtained a username and password to access the videos through a publicly available website. Prosecutors have countered that the First Amendment does not give Burke a right to take “private and proprietary information” that belongs to others.
Last year, the defense asked Mizelle to throw out seven of the 14 charges on free speech grounds.
Those charges came under the federal Wiretap Act, a law that aims to protect privacy while allowing law enforcement to gather information.
Mizelle found that the law ran afoul of the First Amendment.
The government filed notice in November that it would appeal Mizelle’s ruling. Since then, the case has been at a standstill.
It is unclear how prosecutors might proceed in the wake of their decision to drop the appeal.
They could choose to go to trial on the remaining charges against Burke, most of which are misdemeanors. Or, they could convene a grand jury to bring a new indictment that would cure the First Amendment concerns.
Maddux vowed to vigorously fight the case.
“We continue to assert he has legitimate defenses and legitimate First Amendment rights that he was exercising in the sphere of the internet,” the attorney said.
