Under the Washington Public Records Act (PRA), chapter 42.56 RCW, the news media has been given a special exception to receive copies of records related to public employment and licenses that are otherwise exempt from disclosure to the general public. Who or what is considered news media is an issue of general concern, especially with the rise of independent citizen journalists.
In Green v. Pierce County, the Washington Supreme Court was tasked with deciding whether an individual who has a YouTube channel but is not affiliated with any news organization qualifies as news media—a case with implications also for journalists under Washington’s Shield Law. Last month, the court held by a vote of 7-2 that an individual was not considered “news media” as defined by the Legislature in the PRA.
The Underlying Dispute
Brian Green independently runs a YouTube channel called Libertys Champion, where he gathers and reports news about government corruption in this state. He has no affiliations with any news organizations. He has not created a business structure for this work.
Green sought records from Pierce County regarding County employees, including deputies, detention center, and jail personnel, who were on duty during the time he had a run-in with a Sheriff’s Deputy and was arrested. Pierce County responded with records, but did not include photographs or dates of birth, citing the exemption for certain information in the personnel files of employees of criminal justice agencies. Green argued he qualified to receive those records under the exception to the exemption for news media. Pierce County disagreed. Green sued.
Definition of News Media
The definition of news media in the PRA is taken directly from Washington’s news media Shield Law, RCW 5.68.010(5). The Shield Law defines news media in three ways, only two of which apply in this case:
First, “[a]ny 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.” RCW 5.68.010(5)(a).
Second, “[a]ny person who is or has been an employee, agent, or independent contractor of any entity listed” above, “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.” RCW 5.68.010(5)(b).
Majority Opinion
The majority analyzed the statute using a two-part analysis. First, the alleged member of the media must fall under one of the traditional listed news outlets or the general term “entity.” Second, it must also be engaged in the regular business of news gathering and disseminating news or information to the public.
The court held that Green and Libertys Champion failed the first part of the analysis because it was not an entity. Using the canon of construction ejusdem generis, the meaning of general term like “entity” must be construed consistent with the specific terms in the statute. Similarly, under the canon of construction noscitur a sociis, a word should be read in relationship to the other words in the statute and not in isolation. As a result, “entity” must be interpreted “to embrace something that is similar in nature to the specific types of traditional news outlets listed in the statute.”
Under the plain meaning of the statute, therefore, an entity cannot be an individual. It must be something with a legal identity separate from the individual.
The majority acknowledges that this is likely an outdated definition of news media, as it was enacted in 2007. Yet the court cannot change the definition. Only the Legislature can. The court is bound by the statute’s current unambiguous language.
Under the second prong, the majority also holds Green does not fall within the definition, because he must be an employee, agent, or independent contractor of a news media entity. He is not. The court leaves for another day the issue of what “engaged in bonafied news gathering” means or what Green’s intent was in making the records request.
The 800 pound gorilla in the room is, of course, the First Amendment. The majority brushes away this issue in a footnote. Green and the First Amendment Clinic at Duke Law School, as amicus curiae, argued that the definition of “news media” should be broadly construed so as not to infringe on the First Amendment’s freedom of the press. However, in Footnote 5, the majority sidesteps the issue by noting there is no freedom of the press implications if there is no news media, citing Justice Stewart’s concurring opinion in Houchins v. KQED, Inc., 438 U.S. 1, 16, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978), for support. I will leave it to you, gentle Reader, to decide whether the footnote deals appropriately with the issue.
The Dissent
The dissent, written by Justice Whitener, argues that Green/Libertys Champion both qualified as news media and was engaged in the regular business of news gathering or disseminating. The dissent points out that nothing in the statutory language requires news media to be a separate legal entity from an individual or organization. For example, looking at newspapers, there is nothing in the statute that requires a newspaper to have a separate legal entity. Newspapers encompass the Seattle Times and the New York Times, which have do have separate legal entities, but also high school newspapers and community newspapers that may not. As she states, “nothing excludes from the term ‘newspaper’ a single person putting together, editing, printing, and distributing a few pages of information,” which is the digital equivalent of what Green was doing.
Further, dictionary definitions don’t define “entity” as limited to something that has a separate legal identity. According to Webster’s, “entity” is synonymous with “being” and “existence.”
Justice Whitener also relies upon the First Amendment for support of a broad reading of “news media.” She notes the US Supreme Court has remarked that freedom of the press is a “fundamental personal right” not limited to newspapers and periodicals. It includes pamphlets and leaflets. Thus, distinguishing news media based on the size or organizational structure is disfavored, if not outright impermissible.
Justice Whitener would also hold that Libertys Champion engages in the regular business of news gathering and disseminating. There is no statutory definition of the terms, so she again turns to Webster’s for the definition of “news,” as well as US Supreme Court precedent interpreting the word “news.” Those definitions all demonstrate that Libertys Champion easily qualifies. She cites several videos produced by LIbertys Champion that were similar to stories run in the Seattle Times. Libertys Champion also regularly posted stories and videos.
Justice Whitener takes issue with Pierce County’s apparent view that Libertys Champion is not worthy of being considered news media or what it posts can’t possibly be newsworthy. She says this position puts courts in the business of determining what is or is not newsworthy, which is inappropriate under the First Amendment, both because of free press protections and potential content-based restrictions on speech.
Miscellaneous Stuff
This decision has, not unexpectedly, received some criticism, for its corporatist view of the media, as well as the danger now posed to independent journalists in Washington who will not now receive the protection of the Shield Law. The majority would no doubt respond by saying it’s the Legislature’s job to fix the problem, if there is one, and change the definition of news media.
If you’re curious, here’s Libertys Champion’s YouTube channel, where you can see he has more than 18,000 followers.
And to answer the question that I know has crossed your mind, yes, it drove me a little crazy every time I typed Libertys Champion without the apostrophe.