HONORABLE NELSON K.H. LEE Hearing Date: July 2, 2020 at 1pm IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING SUBPOENA DUCES TECUM TO KIRO SW No. 20-0-616926 TV, TEGNA, SINCLAIR MEDIA OF SEATTLE TRIBUNE BROADCASTING SEATTLE AMICUS CURIAE BRIEF OF THE SEATTLE TIMES COMPANY REPORTERS COMMITTEE FOR PURSUANT TO 23(1?) AND FREEDOM OF THE PRESS 10.79.0150) I. INTEREST OF AMICUS CURIAE Amicus Curiae the Reporters Committee for Freedom of the Press (?Reporters Committee?) is an unincorporated nonpro?t association Of reporters and editors dedicated to defending the First Amendment and newsgathering rights ijournalists. As an organization that advocates on behalf Ofthe news media, the Reporters Committee has a strong interest in ensuring that courts apply the quali?ed privilege forjournalistic work product set forth in Washington?s reporter shield statute (the ?Shield Law?), RCW 5.68.0l0, as well as the quali?ed reporter?s privilege based in the First Amendment, in a manner that fully protects journalists? ability to gather and disseminate news. AMICUS CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1 - Since the enactment of the Shield Law, there have been no published decisions interpreting the statute in the context of a criminal matter or investigation. See Republic of Kazakhstan v. Does 1?100, 192 Wn. App. 773, 781, 368 P.3d 524, 528 (2016) (interpreting the statute in context ofa civil suit and noting that, at that time, no prior court had interpreted the Shield Law). Thus, the matter before this Court is one of first impression. The Reporters Committee has signi?cant experience with legal issues relating to the reporter?s privilege and shield laws and can aide the Court in its interpretation ofthe Shield Law in this case. For the reasons set forth below, the Reporters Committee urges the Court to enter an order holding that the subpoena duces tecum issued on June IS, 2020, to non-parties the Seattle Times Co., Sinclair Media of Seattle, LLC, KING Broadcasting Company, KIRO TV, Inc. and Fox Television Stations, LLC (collectively, the ?News Media Companies?)1 (the ?Subpoena?) is unenforceable. II. ARGUMENT Washington courts have long recognized the importance ofajournalist?s privilege. See, State v. Rinaldo, 102 Wash.2d 749, 754, 689 P.2d 392, 395 Senear v. Daily Journal-American, 97 Wash.2d I48, 157, 641 P.2d 180, 184 (1982). With the enactment ofthe Shield Law in 2007, the Washington State Legislature not only codi?ed the common law reporter?s privilege previously recognized by Washington courts, but also strengthened it. To overcome the privilege under the Shield Law. the party seeking disclosure must show The Reporters Committee understands that the Subpoena misidenti?es the entities that operate KING-5 and 3. The list of entities is based on that in the News Media Companies? Objections and Request to Quash. AMICUS CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 2 - that the information sought is both ?highly material and relevant,? and ?critical or necessary to the maintenance ofa party?s claim, defense, or proof of an issue material thereto.? RCW In addition, the party seeking disclosure must demonstrate that it has ?exhausted all reasonable and available means to obtain [the desired information] from alternative sources.? RCW Finally, the party seeking disclosure must show a ?compelling public interest in the disclosure.? RCW The First Amendment also affords a qualified privilege against compelled disclosure of ?facts acquired by a journalist in the course of gathering the news.? Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993). To determine whether that constitutional privilege is overcome, courts weigh ?the claimed First Amendment privilege and the opposing need for disclosure . . . in light ofthe surrounding facts . . . to determine where lies the paramount interest.? Id. (quoting Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir. 1975)). The Reporters Committee agrees with the News Media Companies that the Subpoena is unenforceable under the Shield Law and the First Amendment for the reasons set forth in the News Media Companies? Objections and Request to Quash. See News Media Obj. Req. to Quash Purported Subpoena for Protected Newsgatherin Material at 7?13. The Reporters Committee separately writes to emphasize for the Court the effect that enforcement ofthe Subpoena would have on all journalists and news media organizations in Washington, especially those engaged in covering protests and other demonstrations. Requiring members of the news media to assist law enforcement of?cers in an ongoing investigation by turning over theirjoumalistic work product increases the likelihood that members of the public will incorrectly perceive journalists to be an extension of law enforcement, rather than independent press. See Gonzales v. Nat '1 Broad. Ca, 194 F.3d 29, AMICUS CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (2d Cir. 1999) (noting that ?permitting litigants unrestricted, court-enforced access to journalistic resources would risk the symbolic harm of makingjournalists appear to be an investigative arm of. . . the government?; emphasizing ?paramount public interest in the maintenance ofa vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters?); Shoen, 5 F.3d at 1295 (?nding persuasive concerns about ?the disadvantage of ajoumalist appearing to be . . . a research tool of government? (quoting United States v. La Rouche Campaign, 84] F.2d 1 176, 182 (lst Cir. 1988)); La Rouche Campaign, 841 F.2d at 182 (?observing Justice Powell?s essential concurring opinion in Branzburg, ?certainly, we do not hold . . . that state and federal authorities are free to annex the news media as an investigative arm of government? (quoting Branzburg v. Hayes, 408 US. 665, 709, 92 S. Ct. 2646, 2671 (1972) (Powell, J., concurring?; cf Leslie A. Warren, A Critique ofan Illegal Conduct Limitation on the Reporters Privilege Not to Testify, 46 Fed. Comm. LJ. 549, 557 (1994) (noting that ifthe reporter?s privilege were weakened, ?the press would face the possible image of being an arm oflaw enforcement, rather than a neutral observer?). Undermining the public?s perception ofjoumalists as independent of government entities, including and especially law enforcement, is particularly problematic in the context of protests, where reporters may be exposed to risk of physical harassment and harm. As the US. Court of Appeals for the Ninth Circuit has explained: If perceived as an adjunct ofthe police or ofthe 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. AMICUS CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 4 .28 Shoen. 5 F.3d at 1295 (9th Cir. 1993) (quoting Duane D. Morse John W. Zucker, The Journalist ?s Privilege, in Testimonial Privileges 474?75 (Scott N. Stone Ronald S. Liebman eds., 1983)). Recent examples of violence againstjoumalists covering protests demonstrate that these concerns are well-founded. Protests have consistently been the most dangerous place for workingjournalists in the United States in recent years. See Sarah Matthews, Press Freedoms in the United States 2019, 8 (2020), (nine of 34 physical attacks on journalists in 2019 occurred at protests); Sarah Matthews, Press Freedoms in the United States 2018, 1 1 (2019), 3 of35 physical attacks onjournalists in 2018 occurred at protests); Sarah Matthews, Press Freedoms in the United States 2017, 10 (201 8), uploads/ imported/201 80403_1 00407_press_freedoms_ of 45 physical attacks onjournalists in 2017 occurred at protests). Amidst the wave of physical assaults onjournalists covering the recent nationwide protests sparked by the killings of George Floyd, Breonna Taylor, and other Black Americans, some assailants have made clear that they Viewjournalists as an unwelcome extension of law enforcement. For example, ajournalist covering protests in Tucson, Arizona, with his press credentials clearly visible was punched, pushed, and kicked by protestors, who stated he was ?with the police.? Individuals at Protest in Tucson Target Journalist with Repeated Physical Attacks, US. Press Freedom Tracker (May 29, 2020), His assailants stated, ?This is a protest and we?re protesting you, [expletive].? Id. Protestors hit anotherjournalist covering protests in Tucson in the arm and made statements including AMICUS CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS - 5 ?[w]hen you put our faces on TV, it gets us killed,? and you use our faces, we?re going to come ?nd you.? Individuals in Crowd A ccost Newspaper Reporter Covering Protests in Tucson, US Press Freedom Tracker (May 29, 2020), As these recent examples show, journalists covering protests are already at heightened risk. Compelling them to turn over to the police unaired Video footage and photographs gathered to report the news will sharply increase that risk. Enforcement of the Subpoena could mislead the public into perceiving reporters at protests as a mere arm of law enforcement, thus eroding public trust in the news media and increasing the already? significant risk of physical harm thatjournalists face when covering protests. Accordingly, the Subpoena is contrary to the public interest, and the Court should not enforce it. CONCLUSION For the reasons set forth above, the Reporters Committee respectfully urges the Court to enter an order holding that the Subpoena is unenforceable. Dated this 29th day oflune, 2020. Madeline Lamo, WSBA #55021 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th St. NW, Suite 1020 Washington, DC 20005 Tel: (202) 795-9300 Email: mlamo@rcfp.org Attorney for Amicus Curiae the Reporters Committee for Freedom of the Press AMICUS CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS - 6 - CERTIFICATE OF SERVICE 1, Madeline Lamo, declare that 1 am employed by the Reporters Committee for Freedom of the Press, a citizen ofthe United States of America, a resident of Arlington, Virginia, over the age of eighteen (18) years, not a party to the above-entitled action, and competent to be a witness herein. On June 29, 2020, 1 caused a true and correct copy ofthe foregoing document to be served on the persons listed below in the manner indicated: Via Email: Eric M. Stahl Davis Wright Tremaine LLP 920 Fi?h Avenue, Suite 3300 Seattle. WA 98104 Tel: (206) 757-8148 Email: ericstahl@dwt.com Attorney for the Seattle Times Co, Sinclair Media of Seattle, LLC, KING Broadcasting Company, KIRO V, Inc, and Fox Television Stations, LLC Brian W. Esler Miller Nash Graham Dunn LLP Pier 70, 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 brian.esler@millemash.com Attorney for the Seattle Police Department I declare under penalty of perjury under the laws ofthe state of Washington that the foregoing is true and correct. DATED this 29th day of June, 2020 at Arlington. Virginia. Madeline Lamo, WSBA #55021 AMICUS CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS - 7