On May 27, 2021, the Washington Supreme Court held that an individual, Brian Green, and his YouTube channel, Libertys Champion, do not meet the definition of “news media” for purposes of the state’s Public Records Act (PRA) and were therefore not entitled to receive exempt records. In a 7-2 split decision, the Court held that the “statutory definition of ‘news media’ requires an entity with a legal identity separate from the individual.” Green v. Pierce Cty., 98768-8, 2021 WL 2149389 (Wash. May 27, 2021).
Despite having robust public records laws, the availability of public records in Washington are not without exemptions. The exempt records at issue in Green were certain public employment records, including photographs and month and year of birth of employees of criminal justice agencies. The PRA, however, carves out an exception for “news media,” meaning entities like the Seattle Times and KIRO 7 News are entitled these records. But why not a YouTuber and his YouTube channel?
Plaintiff Green holds himself out as an “Investigative Journalist” who gathers and reports “news” on his Libertys Champion YouTube page, which purportedly reveals government corruption in Washington. Following an incident at the County-City Building in Tacoma, which resulted in Green’s arrest, Green issued a public records request for information about security personnel.
The Pierce County Sheriff’s Department provided certain records but indicated that the dates of birth and official photos were exempt for all requestors except “news media.” Claiming he was “working on a story concerning the Pierce County Jail,” Green responded that he fit the definition of “news media” because he covers local court cases and has nearly 6,000 subscribers. His request was again denied.
Green subsequently filed a lawsuit against Pierce County seeking disclosure under the PRA of the requested records. He alleged that he, individually, fit the definition of “news media” along with his YouTube channel. The PRA applies the definition of “news media” from Washington’s news media shield laws. Pierce County claimed that neither Green nor his YouTube channel were “news media” because Libertys Champion was not a separate legal entity from Green. The trial court sided with Green, finding that the YouTube channel and Green fit the statutory definition of “news media,” which the trial court concluded does not require a specific corporate form or financial profit.
The Washington Supreme Court, however, disagreed with the trial court. The Court explained that the statutory definition of “news media” requires two components: (1) the purported member of the news media must fit within one of the traditional news outlets listed in the statute (e.g., a newspaper, magazine, or television station) or the general term, “entity”; and (2) it must be engaged “in the regular business of news gathering and disseminating news or information to the public.” The Legislature enacted the definition of “news media” in 2007 (two years after YouTube first started operating) and has not yet amended it. The Court acknowledges that access to news has evolved and that the “statutory definition may not comport with the current intersection of social media and the news.”
Despite YouTube being created to allow individuals to have their own “television” channel, the Court held that the Libertys Champion YouTube channel does not fit the “traditional” news outlets listed in the statute. The issue then turned on whether Libertys Champion qualifies as an “entity.” The Court held that it does not.
The word “entity” must be construed in a manner consistent with the specific “traditional” news outlets listed in the statute which, according to the Court, only included organizations.
An “entity,” the Court held, “must be something with a legal identity separate from the individual.” The Court reasoned that owning and operating a YouTube channel does not create a news media entity if it is run by an individual. Because Libertys Champion is run by Green, it is not an “entity” for purposes of the PRA. In other words, the Court’s analysis focuses on the owner and operator of the YouTube channel, rather than the medium itself.
The Court also rejected the argument that Green, as an individual, meets the definition of “news media.” By statute, “news media” also includes any person who is an “employee, agent, or independent contractor of any entity[.]” Having already concluded that Libertys Champion was not a news media entity, nor could Green be an employee, agent, or independent contractor of a news media entity. Thus, the Court found that neither Libertys Champion nor Green were allowed to get those records.
Two judges dissented from the majority and would hold that Libertys Champion is “news media” under the PRA. The dissent begins its analysis with the following question: “what counts as news media in the shifting landscape of the 21st century?” The dissent observes that nothing in the plain language of the statute requires a separate legal identify from an individual to qualify as an “entity.” Considering the term “newspaper,” which appears in the definition of “news media,” the dissent notes that a “newspaper” could encompass the New York Times, but also a high school newspaper, as well as something put together by a single person – which it describes as “the analog equivalent of the digital task performed by Green via Libertys Champion.” From a First Amendment perspective, the dissent adds that “distinguishing different news media based on size or organizational structure or status as a legal entity is disfavored, if not outright impermissible.”
As of the date of this article, Libertys Champion has over 18,000 subscribers. According to the Washington Supreme Court, however, it does not matter if your social media post goes viral, if you have millions of subscribers, or if you are reporting on newsworthy topics. Instead, the focus is on whether the YouTube channel is owned and operated by a valid legal “entity.” To claim “news media” status, the “entity” must have a legal identity apart from the individual posting the information. In addition, the “entity” must be engaged “in the regular business of news gathering and disseminating news or information to the public.” Unless the Legislature amends the PRA, a YouTube channel is not enough.