Did the WA Supreme Court just gut press protections for many independent journalists?

In Washington State, a news corporation now has more free press protections than an independent journalist. That seems to be the outcome of a somewhat surprising Washington Supreme Court decision this week, which potentially gutted the state’s Shield Law that protects journalists from prosecution for refusing to reveal their sources or turn over notes and other unpublished materials (with some exceptions).

By a 7-2 decision (PDF) in Green v. Pierce County, the majority determined that Brian Green’s YouTube channel Libertys Champion does not meet the definition of “news media” as defined by the 2007 Shield Law (RCW 5.68.010). Green’s case was not even about the Shield Law, but this ruling seems to set a precedent in how the Shield Law is interpreted.

Green was seeking certain public records from Pierce County that are protected from disclosure except to news media (RCW 42.56.250 section 8). Pierce County denied that part of his request, claiming that he and his YouTube channel don’t meet the definition of “news media.” Green filed a suit, and that case made it all the way to the WA Supreme Court. The Appellate Court sided with Green, but the Supreme Court reversed the lower court’s decision.

The most worrying part of the decision is not the reduced access to public disclosure (though that’s obviously bad), it’s that now anyone reporting news without the cover of a corporation or other organization (like a school) is exposed to prosecution if they refuse to reveal sources. Police could also much more easily subpoena unpublished materials like unedited notes, photos, videos and other materials.

This is not an imaginary or far-fetched scenario. It nearly happened last summer. Seattle Police sought and obtained a subpoena to force major news organizations in town to turn over reporters’ unpublished photos and videos from the summer protests. I helped organize a group of 27 independent journalists working in town calling on the city to drop the subpoenas. Because while only major organizations were targeted at the time, the threat was chilling for independent journalists without the resources to fight in court:

The ongoing court case is frightening for our counterparts at these major news organizations. But it is terrifying for us, independent journalists without the financial and legal backing of a major media corporation. If SPD is successful in this case, there is no reason to think that independent journalists won’t be targeted next.

The city eventually dropped the subpoenas amid public backlash, but those major organizations were certainly going to use the Shield Law in their legal appeals had the case moved forward. Now because of Green v. Pierce County, independents might not have such a protection at all.

The Court’s majority basically argued that even though modern understandings of news media likely include Green and his channel, the law as written does not.

Modern conceptions of ‘news media’ continue to evolve and expand beyond the limits of the statutory definition, but that definition circumscribes our analysis,” the court wrote (PDF). “The legislature enacted the current statutory definition of ‘news media’ in 2007, and the statute has never been amended.

The justices note that it’s the legislature’s job to fix that, not the court’s:

Indeed, many people now access news through their social media accounts. During the Black Lives Matter protests over the last year, protesters, bystanders, and journalists alike posted copious social media posts and livestreams to keep people informed of the events. See James Yeh, ‘I’m Out Here—I Am the News for Our People.’ How Protestors Across the Country Are Keeping Informed […] 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.

The dissenting opinions disagreed with the majority’s understanding of the word “entity,” believing (as I think most people did) that a person is an entity. Instead, it seems now only an organization or corporation is an entity for the purpose of this law. But the dissenting opinion is irrelevant now, and it looks like it is up to the state legislature to fix the wording to clearly include independent journalists. I hope this makes it into the 2022 legislative session.

Independent journalists should consider forming an LLC

Employees, independent contractors (such as freelancers) and “agents” of a legally-acknowledged news entity are protected by the shield law. So my reading of the decision (though I am not a lawyer) is that it’s primarily journalists who are self-publishing (or freelancers working without an assignment in hopes of selling it later) who are put at risk here. But the number of people potentially exposed by this decision could be huge given how many people are out there streaming, taking photos and video, and sharing people’s stories on social media or blogs. I hope people who covered and continue to cover protests are paying attention. Here’s the relevant language in the law (RCW 5.68.010):

(5) The term “news media” means:
(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;

My advice as someone who is definitely not a lawyer is for every independent journalist, whether you make money or not, to register as an Limited Liability Corporation with the state. It’s $200, which isn’t nothing, and you gotta pay a $60 renewal every year on top of some extra paperwork. It’s not as complicated as it sounds. If any WA journalists out there can’t afford the $200 right now, email me at [email protected] and maybe we can start a fund or something. You can also email me if you have questions about the process.

I have questions out to various people seeking a legal opinion on whether forming an LLC would satisfy the court, but have not yet heard a definitive answer (please email me if you can help). I am personally hoping this is the case, because then Seattle Bike Blog LLC would be protected.

But forming an LLC is a good idea for independent journalists anyway, and they come with some perks beyond potentially protecting you under the Shield Law. Another big benefit of operating as an LLC is that it should help protect your personal assets from being exposed to various liabilities, such as a libel suit. Even if you’re in the right, defending a libel suit can be too expensive for independent journalists. And at least in theory, only the assets of the LLC would be at risk, not, say, your savings or home or whatever is in your name. You can also open a bank account and work to build credit for your business, which could be useful some day if you need a business loan and don’t want to sign your personal property as collateral.

Perhaps we could start an independent journalists organization that people can join. We could mail everyone an ID badge that says “Washington State News Entity Agent.” Are there any actual lawyers out there who can tell me if that would work?

We need independent journalism

In college, I attended a regional newspaper convention in 2005 that just so happened to be held in St. Louis the day the Pulitzer company and its flagship St. Louis Post-Dispatch was sold to a regional newspaper company. An editor for the paper was in tears trying to talk to the group of reporters about the news, a worrying harbinger for the whole industry.

After graduating from college in 2008, I traveled to Kansas City to start an exciting internship at the storied Kansas City Star newspaper. But when I walked into the newsroom for my first day, many people inside were crying. The paper had just laid off a significant percentage of the reporting staff, their first major round of layoffs. It wouldn’t be the last. The major institutions supporting my chosen career path were crumbling.

After the internship ended, I moved to Denver. Within months of arriving, the great daily Rocky Mountain News shut down. By the time I moved to Seattle a year later, the Seattle Post-Intelligencer had essentially shut down, operating in a severely diminished capacity online.

Like so many of the journalists that our state relies on for vital news reporting, I decided to try to make it as an independent journalist. Because what other choice do we have? And by “we” I don’t just mean journalists looking for work, I’m talking about our democracy.

Our society needs journalists who can work freely, whether their paychecks come from Hearst or people on Patreon.

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4 Responses to Did the WA Supreme Court just gut press protections for many independent journalists?

  1. asdf2 says:

    Interesting post…but it seems to be along the lines of general politics and not really related to bikes, bike infrastructure, or bike safety.

    • Danica says:

      @asdf2 Did you not see that ridiculous, hostile “bikes seek to dominate the roads” headline from the Seattle Times a couple weeks ago? And that’s par for the course from them, and every other major news outlet. We won’t have news about bikes, bike infrastructure, or bike safety without independent journalism. It is absolutely related.

    • Ballard Biker says:

      The ruling could have a serious effect on blogs that seek to pick up the stuff that traditional journalism don’t or won’t run and the Seattle Bike Blog is a blog, so I would think highly relevant.

  2. Breadbaker says:

    I am a lawyer, but I’m not rendering anyone legal advice (you get to go through a vetting process and pay real live money for that, sorry). And I haven’t had time to read the opinion yet, though I read the summary of it on a clipping service, so I’m familiar with some of it.

    Just some 50,000 foot observations, not to be relied on by anyone as legal advice, about some of the issues Tom raises.

    As I said, I haven’t read the opinion, but I think it’s at least likely that they weren’t well-briefed on some issues (this happens at the court all the time, unfortunately). One is that it’s perfectly possible for a sole proprietorship, unincorporated and not an LLC, to have agents. However, an independent journalist is not her or his own agent, which may make the distinction one without a difference on the facts of the case. But my wife had a sole proprietorship in Washington for many years, and she absolutely hired all kinds of agents.

    The court is right that this can easily be fixed by the Legislature. The court was pretty much inviting this to happen with the language quoted in the OP. Putting aside what I wrote in the prior paragraph, if the court concluded that “entity” required something other than a sole proprietorship (a general partnership in Washington is an entity (RCW 25.05.050(1)), and its creation requires nothing more than an informal agreement to share profits among two persons, and no filing with the Secretary of State or any other official), that’s the law (an individual is not an entity, the OP notwithstanding).

    I do disagree about the creation of an LLC having the effect of shielding an individual journalist from liability. An LLC can shield an individual from contracts entered into solely with the LLC (with exceptions), but if the journalist wrote the allegedly defamatory material, the existence of the LLC does not shield the journalist at all. You are liable for your own acts as a journalist even if done on behalf of an entity. The entity may have the obligation to indemnify you for those acts, which is obviously limited to the extent of its resources, but that doesn’t take away your own liability for those acts. If there are two journalists working for the entity, the other one would be shielded (assuming no negligent supervision), which would not be the case if they instead formed a general partnership (for which there is no limited liability), but the person who actually wrote the piece found defamatory gets no liability protection from an LLC.

    Again, not legal advice and worth just what you paid for it.

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