SPD subpoenas footage of protests from local media organizations

“For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.”  United States vs. Bryan (1950)

 

On June 22, the Seattle Police Department delivered a subpoena to the Seattle Times, KING, KIRO, KOMO and KCPQ for:

Unedited or raw video footage/ photographs from KIRO TV, KING TV, KOMO TV and KCPQ, and the Seattle Times, for Saturday, 05-30-20, taken from 1530 hrs; to 1700 hrs; in the area from Olive Street to Pike Street and from 6th Avenue to 4th Avenue.

You may recall that this is the time and place of protests and a riot in downtown Seattle in which police cars were set on fire and destroyed, and several guns were stolen from a police car.

The news media companies are collectively fighting the subpoena in court. So far, they are losing.

 

In 1972, the U.S. Supreme Court heard the case of Branzburg vs. Hayes, in which a newspaper reporter refused to testify to a grand jury. The Court ruled that the First Amendment does not grant journalists an absolute privilege that can be used to escape their other responsibilities as citizens of the United States:

It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that ‘(t)he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.’

However, it noted that both Congress and individual states are free to legislate “shield laws” that grant additional protections for journalists from forced disclosure.

At the federal level, Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute.

In 1995 the 9th Circuit Court of Appeals further clarified the rules from the federal government’s perspective in Shoen vs. Shoen, in which it set the standard for when a journalist’s qualified privilege could be overcome to force compliance with an order to produce evidence:

To overcome a valid assertion of the journalist’s privilege by a nonparty, a civil litigant seeking information that is not confidential must show that the material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.

Importantly, the Court ruled that “clearly relevant” means actual, provable relevance, not potential relevance.

In an earlier round of that case, the court made clear what was at stake for journalists if the government could freely compel them to produce evidence: (my emphasis)

“the threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve nonbroadcast material; and the burden on journalists’ time and resources in responding to subpoenas.

The compelled disclosure of non-confidential information harms the press’ ability to gather information by… damaging confidential sources’ trust in the press’ capacity to keep secrets and, in a broader sense, by converting the press in the public’s mind into an investigative arm of prosecutors and the courts. It is their independent status that often enables reporters to gain access, without a pledge of confidentiality, to meetings or places where a policeman or a politician would not be welcome. If perceived as an adjunct of the police or of the courts, journalists might well be shunned by persons who might otherwise give them information without a promise of confidentiality, barred from meetings which they would otherwise be free to attend and to describe, or even physically harassed if, for example, observed taking notes or photographs at a public rally.”

Here in Washington, the State Supreme Court ruled in 1984 that reporters have a qualified privilege under common law for criminal cases, and set the standard for overcoming it:

To defeat the common law qualified privilege for news reporters in a civil or criminal proceeding, the party seeking discovery must show (1) the claim is meritorious; (2) the information sought is necessary or critical to the cause of action or the defense pleaded; and (3) a reasonable effort has been made to acquire the desired information by other means. Finally, the court must also find the interest of the reporter in nondisclosure is supported by a need to preserve confidentiality.

Rather than leave it entirely up to the courts, in 2007 the state legislature passed a “shield law” (RCW 5.68.010) to codify protections for journalists. It creates an absolute privilege for journalists to refuse to reveal “the identity of a source of any news or information or any information that would tend to identify the source where such source has a reasonable expectation of confidentiality.”  It then provides a qualified privilege for “Any news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised. This does not include physical evidence of a crime.” To overcome the qualified privilege, a party must establish “by clear and convincing evidence” that: (emphasis mine)

(a)(i) In a criminal investigation or prosecution, based on information other than that information being sought, that there are reasonable grounds to believe that a crime has occurred; or
(ii) In a civil action or proceeding, based on information other than that information being sought, that there is a prima facie cause of action; and
(b) In all matters, whether criminal or civil, that:
(i) The news or information is highly material and relevant;
(ii) The news or information is critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto;
(iii) The party seeking such news or information has exhausted all reasonable and available means to obtain it from alternative sources; and
(iv) There is a compelling public interest in the disclosure. A court may consider whether or not the news or information was obtained from a confidential source in evaluating the public interest in disclosure.

State law (RCW 10.79.015) also bars governments from issuing search warrants against news media or their employees, requiring instead that all information (with very few exceptions) compelled for production be done via a subpoena — forcing it to overcome the shield law.

Washington’s shield law has almost never been tested in court; in fact there is only one civil case, and no criminal cases.


SPD’s subpoena says that the department is trying to gather evidence of theft of a firearm and arson:

It includes a timeline for the crimes that the detective has pieced together, along with photos of suspects obtained from members of the public, SPD’s own videographers, published/broadcast footage from news media, and surveillance cameras in Nordstrom, Westlake Mall, and Pacific Place. However, it claims that the photos and video footage are of poor quality, insufficient to identify the suspects — which is why they want the unpublished footage:

 

Attorneys on behalf of the media organizations filed an objection and a formal request to quash the subpoena. Procedural issues aside (SPD initially filed it as a search warrant instead of a subpoena, but it’s fixed now), their objection reiterated the threshold standard in the state shield law (above) and asserted that the subpoena did not meet the threshold.

Among the points it argues:

  • SPD is going on a fishing expedition; it doesn’t know if the media agencies actually have any recorded relevant footage that is better than what they already collected — so it can’t know that the material it is demanding is “highly material and relevant” and is “critical or necessary” to a claim. Any claim that they make is purely speculative, not actual, at this point.
  • Even if it meets those two standards, SPD’s subpoena is overbroad — they are asking for everything that the news organizations recorded in a 90-minute period in an area that spans multiple blocks of downtown Seattle.
  • SPD has not demonstrated that it has exhausted “all reasonable and available means” to obtain necessary footage from other sources. It obtained surveillance footage from two downtown malls and from Nordstrom. But there are dozens of storefronts with security cams in the multi-block area its subpoena covers, and SPD has not indicated that it has reached out to all of them, let alone searched through their footage.
  • SPD has not made the case that on balance there is a compelling interest in forcing the news media organizations to hand over their recorded footage, given that it will hurt the credibility of the news media in Seattle and threaten journalists’ physical safety. The subpoena applies not only to the media companies but also to the individual journalists that they employ.

 

 

It’s easy to brush off the potential danger to journalists, but the last two months have shown that the danger is very real. Journalists have been threatened and attacked by both protesters and police here in Seattle as well as in other cities across the nation. A broad understanding that journalists’ footage and records could be taken by investigative authorities dramatically increases the likelihood that people will object to their presence, attack them, seize and destroy their notes and equipment, intimidate them, and try to force them to leave.

SPD, of course, had its chance to respond to the request to quash its subpoena. In it, the department argues that it’s “likely” and “highly probable” that the news media footage will include high-quality images of the suspects, and says it “may be the best evidence available to identify these suspects.” It goes on to claim that other footage reviewed by SPD’s detective “do note provide good enough footage for identification, which makes the better-quality footage critical or necessary.”

SPD also claims, without any additional evidence or listing any additional sources of footage obtained, that it has “exhausted the reasonable and available sources for the information that it seeks; it does not need to show more.” Additionally, the department argues that that in weighing the public interest the court “should also consider the continued danger represented by the firearms that have not been recovered, and the suspects who were willing to steal such firearms from SPD vehicles” — directly encouraging the court to find that there is a compelling public interest in placing journalists’ physical safety at risk for the purposes of increasing the public safety of others. In fact, they say it explicitly:

Calling the claim “speculative” — especially when there is video footage of SPD officers themselves attacking journalists at protest sites — is unbelievably callous. If the city can subpoena news media footage to pursue investigation and prosecution of protesters, it can absolutely do the same thing to pursue investigation and prosecution of police officers, some of whom as recently as this past weekend have shown outright hostility to journalists and the willingness to target them. Can the city seriously argue that these same officers, knowing that journalists’ videos could be used to prosecute them, won’t try to physically stop them from reporting at the scene of a protest?

The news media companies filed a reply attempting to rebut SPD’s arguments, and the Reporters Committee for Freedom of the Press filed an amicus brief arguing many of the same points about the dangers to journalists and journalism form setting the precedent of granting this subpoena.

Nevertheless, last Thursday King County Superior Court Judge Nelson Lee approved the subpoena, ruling “from the bench” rather than issuing a written explanation of his reasoning. He did, however, place some additional restrictions:

The data and information to be provided to the City shall be used solely for the purposes of determining the individual(s) involved in the commission of the arson with respect to the Seattle Police vehicles (marked and unmarked), as well as the theft of the firearms.

While the Court acknowledges the public’s interest in having other crimes solved, the material provided by the media shall not be used to investigate any malicious mischief, burglary, or vandalism to businesses or property. For the purposes of this matter, the public’s interest in those matters does not outweigh the media’s interest in limiting the material provided to the City of Seattle.

If any material turned over by the media is used for any purpose outside the parameters of this order, the Court will order that party in contempt of court. Additionally, the use of this material as evidence in any other case outside the scope of this order would be rendered illegally obtained and in violation of this court order, unless somehow the parties seeking to use it can prove there is independent evidence of crimes being committed.

Unfortunately, this restricts how SPD may use the footage, but it doesn’t actually reduce the amount of footage that the news media companies must turn over to the police.

 

 

Judge Lee scheduled a hearing for Thursday morning to discuss next steps, including the logistics of the news media companies turning over data.

As of this writing, the companies have not indicated whether they intend to appeal the ruling. However, on Monday three City Council members condemned SPD’s subpoena and called for the department to withdraw it. Council member Mosqueda called it “abhorrent” and said that she would be asking the City Attorney to withdraw the subpoena. Council member Herbold said, “The media is not an extension of government. Period.”  Council member Lewis said, “The independence of news organizations is sacrosanct. The press must be held as a trusted institution, not an arm of government.”

Monday afternoon a spokesperson for City Attorney Pete Holmes said, “We’ve reached out to Mayor Durkan to ask how she’d like SPD to proceed with this subpoena, as SPD ultimately reports to her.”  there is no word yet from the Mayor’s Office or SPD on whether they are reconsidering moving forward with the subpoena, or potentially withdrawing it.


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