Last week the Washington State Supreme Court handed down a decision in a case where it was asked to decide whether a guy with a YouTube channel counts as “news media” for the purposes of certain state laws. It said “no,” but in the process made a broad ruling that has serious consequences for small news sites such as SCC Insight.
The Seattle times posted an editorial on the ruling this morning, in which it called this site “helpful.” That may or may not be true, but in either case the editorial muddies the waters somewhat on the issues and misses some of the larger impacts of the ruling, so here’s a more thorough treatment of the topic.
The facts of the case: after an altercation with a Pierce County deputy sheriff at the County-City Building in Tacoma, Brian Green filed a public document request for “any and all records of official photos and/or birth date and/or rank and/or position and/or badge number and/or date hired and/or ID Badge for all detention center and/or jail personnel and/or deputies on duty November 26 & 27 2014.” Under state law, photographs and birthdates are redacted from public document requests for public employees’ personnel records — except for requests from members of the “news media.” Green argued that because he maintains a YouTube site called “Libertys Champion” [sic] where he sometimes posts videos discussing local politics, he therefore counts as “news media” and therefore the exception should apply to him. The question before the Court: is Green “news media”?
Here’s the relevant definition of “news media” as codified in state law:
(a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;
(b) Any person who is or has been an employee, agent, or independent contractor of any entity listed in (a) of this subsection, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity;
And here is how the Court interpreted it in this case:
The statute requires a two-part analysis. First, the purported member of the news media must fall under one of the listed traditional news outlets or the general term, “entity.” Second, it must be engaged “in the regular business of news gathering and disseminating news or information to the public.” RCW 5.68.010(5)(a). Libertys Champion fails the first part of the test. Therefore, it does not meet the statutory definition of “news media.”
Specifically, the Court ruled that neither Green nor Libertys Champion is an “entity.”
Under the doctrines of ejusdem generis and noscitur a sociis, the word “entity” must be interpreted to embrace something that is similar in nature to the specific types of traditional news outlets listed in the statute. The list includes only organizations. It does not include individuals. Indeed, the statute differentiates between organizations and the individuals who represent them. Compare RCW 5.68.010(5)(a) (“[a]ny newspaper, magazine or other periodical . . . or any entity”), with .010(5)(b) (“[a]ny person who is or has been an employee, agent, or independent contractor of any entity listed in (a)”). Under the plain meaning of the statute, the word “entity” cannot be construed to include an individual. An “entity” must be something with a legal identity separate from the individual.
Then the Court proceeded to blame it all on the Legislature:
Modern conceptions of “news media” continue to evolve and expand beyond the limits of the statutory definition, but that definition circumscribes our analysis. The legislature enacted the current statutory definition of “news media” in 2007, and the statute has never been amended. H.B. 1366, 60th Leg., Reg. Sess. (Wash. 2007). In 2007, it was unlikely the legislature could foresee how social media would advance to become an instrumental part of our daily lives. As social media developed, so has a “new news cycle.”
The evermore constant use of social media to access news demonstrates our increased reliance on and trust in social media, and it requires careful vetting to ensure that the news and stories we find are accurate. The manner in which we access news today is vastly different from how we did it in 2007, and this statutory definition may not comport with the current intersection of social media and the news. However, the legislature, not the court, is responsible for enacting statutes, and this court is bound by the statute’s unambiguous language.
In short: the Court decided that a person can’t be an “entity” for the purposes of this definition of “news media.” An “entity” must be a separate legal identity from the person doing the news reporting.
Like Green’s Libertys Champion, SCC Insight started as a personal project that grew into a “regular business of disseminating news to the public.” It’s run as a sole proprietorship, and has never generated enough revenues to justify a more complicated legal arrangement that would create a separate legal identity for it. But under last week’s ruling, SCC Insight is now no longer “news media” for the purposes of the Public Records Act.
To be honest, I don’t care about losing the right to see public employees’ birthdates and photographs. It’s certainly a useful tool for news organizations when trying to connect the dots in certain kinds of investigations, and I’m glad the exception is there, but I would probably never use it.
Here’s my problem: that definition of news media comes from the state “shield law” that prohibits the government from issuing most subpoenas to news media and the journalists in their employment. By interpreting the definition such that SCC Insight is not “news media,” the Supreme Court just stripped me of all protections under the shield law. A city official with sufficient authority who doesn’t like a story I wrote — or perhaps that a whistleblower leaked information to me — can now come after my records. Or SPD might decide that my notes, photos and recordings are relevant to an investigation and subpoena them — and they have a track record of doing exactly that. Last fall local news organizations pushed back on SPD’s overreach because they had the shield law on their side. I no longer do.
The good news for me is that I can set up an LLC for SCC Insight, and arrange things so that it probably passes the “entity” test. It will cost money, and time, and I’ll probably have to consult with an attorney to ensure that I did it all right. I need to know for sure before that subpoena arrives. And it still might not protect any reporting I did before the LLC is set up (we’ll see what the attorney says).
But this means that every laid off journalist who set up a substack site to keep doing journalism while they look for their next job, and every budding journalist who wants to dip their toe in the water first before making a big commitment, either has no shield law protections or also needs to go through all the time, effort and money to set up their own LLC. Or simply decide not to do the kind of journalism that might attract a subpoena from a pissed-off government official. That is chilling, in several senses of the word: chilling in how much sleep journalists will lose; chilling for the important reporting that won’t get done; and chilling for the First Amendment. Just by writing this article I’ve now admitted, in a form very much admissible in court, that I don’t believe I currently have a right to shield law protections (until I get the LLC set up). I wrote it anyway, because people need to understand what is at stake.
And, of course, it must be said that the Court’s interpretation of “entity” as requiring a separate legal identity is both contrived and tortured. This is explained simply and convincingly in the dissent included in the published opinion:
Nothing in the plain language of RCW 5.68.010(5)(a) commands that to qualify as an “entity,” the thing in question must have a separate legal identity from an individual or must be an organization. This becomes clear when looking at the other terms in the statute, such as “newspaper.” While major newspapers like the Seattle Times and the New York Times are of course organizations with separate legal entities, nothing in our statutory language requires it. Nor does the dictionary definition indicate that an organization is required.
The dissent goes on to invoke the roots of freedom of the press in our country (and others) in small-scale operations:
The concerns animating the First Amendment’s protection of the free press also favor including Libertys Champion in the definition of “entity” in this statute. The United States Supreme Court has remarked that “[f]reedom of the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’”
Indeed, the Court has made clear that “liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Branzburg, 408 U.S. at 704. While this case does not directly concern the First Amendment, Branzburg remains instructive, as its “lonely pamphleteer” has become today’s solitary YouTuber, much as its “large metropolitan publisher” has become today’s 24-hour news network. From the perspective of the First Amendment, distinguishing different news media based on size or organizational structure or status as a legal entity is disfavored, if not outright impermissible. To hold that RCW 5.68.010(5)(a) provides otherwise, as the majority does, risks construing the statute in an unconstitutional manner, a result we must avoid.
This is also where the Seattle Times editorial goes wrong, showing its own biases for what it thinks should count as news media: “Most people would trust a trained plumber to fix a leaky pipe flooding their basement over someone who just has a wrench and says he knows pipes. The wrench doesn’t make the plumber, and social media doesn’t make the journalist. Bona fide members of the news media are trained and follow professional standards and ethics.” In rushing to set themselves apart from the rabble, I don’t think they thought through all of the implications of the standard they are arguing for; if government rights and protections are only to be granted to bona fide “trained” media who “follow professional standards and ethics,” then the government is, for all intents and purposes, licensing journalists by establishing the the required training and standards for them. If the government is in the business of licensing journalists, then it’s also in the business of taking those licenses away when government officials so empowered see fit to do so. The day that happens, the First Amendment becomes no more than ink on paper. There is no First Amendment for Plumbers. The Seattle Times doesn’t get to claim it’s “bona fide” news media because its staff are trained and follow professional standards; it gets to make that claim if and only if it’s publishing bona fide news. The only distinction that matters as to whether someone or some organization is “news media” is whether they are gathering and/or reporting news; everything else is an arbitrary construction intended to advantage some and disadvantage others.
And this makes clear the Court’s folly in its ruling: it started down the path of placing misguided, dangerous limits on who qualifies as “news media” based upon legal identity. It could have construed the definition broadly; it chose not to. It can point the finger at the legislature, but it is complicit nonetheless.
Alas, the state Supreme Court has ruled and established precedential case law, which means it’s now up to the state legislature to fix this. Sadly, they have already completed their annual session and will not be back in session until next year — at which time reinstating protections for independent journalists will not be high on their priority list. But if you want to show your support for small, independent journalism in Washington state, I encourage you to drop your state legislators a note letting them know that you think this should be fixed in the next legislative session.
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