Defining “news media” is tricky, especially now that anyone can publish online and “news feeds” include everything from selfies to investigative journalism.
In Washington, some clarity is now provided by a state Supreme Court ruling involving the Public Records Act and the state’s media shield law.
The case was the first big test of the “news media” definition in the 2007 shield law, which justices affirmed in a 7-2 ruling.
The May 27 ruling acknowledges that definition is a thorny question complicated by new platforms and the First Amendment’s broad protections for individuals and all manner of media.
But it cut through the bramble by relying on the Legislature’s intent, to provide certain privileges in particular situations, to professional media entities.
This is far from the last word, however. Other courts and policymakers continue to grapple with the question. They include federal cases involving journalists being targeted by police and dispersed during Portland protests, and prosecutions of Jan. 6 insurrectionists who claim press protections.
The question is also in Congress, where proposals to sustain local news outlets with tax credits and grants must define eligible recipients.
“The landscape keeps changing so we can’t just really come up with a bright line rule yet,” said Gregg Leslie, director of Arizona State University Law School’s First Amendment clinic and former attorney for the Reporters Committee for Freedom of the Press.
Washington’s case is still important, particularly because it strengthens a hard-fought shield law that protects journalists from being forced to testify and disclose sources.
That law defines “news media” broadly, to include newspapers, broadcasters and online outlets.
But it draws a line by specifying that the law applies to “any entity that is in the regular business of news gathering and disseminating news or information to the public.”
The court’s opinion, written by Justice Raquel Montoya-Lewis — an active tweeter herself — said “entity” should be read in the statute’s context, “to embrace something that is similar in nature to the specific types of traditional new outlets listed in the statute.”
The case was brought by Brian Green, a musician and military retiree in Onalaska, who sought public records that the Legislature decided to make available only to “news media.”
Green has a YouTube channel where he shares material he’s collected and commentary, but the ruling said “owning and operating a YouTube channel alone does not create a news media entity.”
In 2017, Green filed a public-records request with Pierce County, saying he was an “investigative journalist” seeking personnel details of law enforcement officers.
Pierce County denied his request, and the Supreme Court upheld that decision.
Why Green was denied the records is complicated. It’s the result of a perpetual struggle involving news outlets and transparency advocates trying to protect the Public Records Act, and special interests seeking to weaken it with more exemptions.
One push came from law enforcement officers, who wanted to block access to official photos of them and their birthdates. Their argument was for privacy and safety. But such information is needed to identify these public employees and hold them accountable.
Facing total loss of access, news organizations reluctantly agreed on a compromise, allowing access to those records for “news media” as defined in the shield law.
That’s not ideal — really everyone should have the same access — but the choice was limited access or none.
Green lost because the court determined he was not a distinct entity in the news business.
He’s been in other disputes over records, including a 2014 case where he sued for records in Lewis County after he lost a race for sheriff, but he chose not to make his crusading a business.
“It’s not about the money to me, it’s about exposing corruption,” he told me.
Several justices were uncomfortable with drawing a line between professional and nonprofessional media. I am too, especially as local newspapers fade and amateurs emerge.
I’m all for people using the Public Records Act, engaging with government and pursuing accountability.
But the line has to be drawn somewhere, legally, or policies like the shield law would be meaningless and unworkable.
“If everybody who posts something on YouTube or Facebook is a journalist, you’re going to have courts running into that all the time, that’s not going to work,” said Kathy George, a Seattle attorney who represented news organizations in the case.
In that situation, “what you’ve got is a protection that isn’t really a protection — the whole thing really collapses,” said Rowland Thompson, executive director of Allied Daily Newspapers of Washington.
To be clear, there’s no gate preventing Green from joining some exclusive club and receiving the same protection. It’s more like a door that’s open to anyone who decides to make journalism their business.
Although one legislator working on the shield law specifically said it wasn’t for “bloggers in pajamas,” it’s easy for bloggers to form a corporation and meet the definition in the Green case, Seattle media lawyer Bruce Johnson told me.
“You can avoid becoming the blogger in pajamas by being the Blogger in Pajamas LLC,” he said.
Still, there’s no absolute definition of the news media, and that’s probably just as well.
“When the framers introduced freedom of the press, they introduced the need to describe what the press was,” Johnson said, “and we will deal with that constantly throughout our lives.”