Free Speech

"Judge Rules That Seattle Media Must Give Unaired Protest Videos to Police"

Generally, the government has broad authority to require any of us to turn over evidence relevant to an investigation.

|The Volokh Conspiracy |

AP (Chris Daniels) reports:

A judge has ruled that KING 5, along with four other Seattle news outlets must comply with a subpoena and give the Seattle Police Department unpublished video and photos from a May 30 racial justice protest….

[Judge Nelson] Lee found that the photos and video were critical for an investigation into the alleged arson of police vehicles and theft of police guns.

[1.] Generally speaking, all of us have an obligation to turn over evidence relevant to criminal cases (including not-yet-filed ones) as well as civil lawsuits. That's so even if we are just bystanders, for instance if the government (or a civil litigant) seeks recordings from our webcams that happened to record evidence relevant to a case. There are limits to this, and procedures that need to be followed—such as the issuance of subpoenas and hearings before judges—but that's the general view. It's a limitation on our liberty and privacy, but one that Anglo-American law has long recognized.

[2.] There are of course familiar exceptions to this rule, with the strongest ones generally being the "privileges": for attorney-client communications, communications among spouses, and the like. But they are indeed exceptions.

[3.] In Branzburg v. Hayes (1972), the Supreme Court held that the media generally don't have a broad First Amendment privilege to refuse to turn over even information about confidential sources. Surprisingly, though, many courts (including, in large measure, the Ninth Circuit) have interpreted Justice Powell's concurrence as recognizing such a privilege, in effect adopting a rule closer to that of the dissent than of the majority (which Justice Powell had expressly joined). And some of those courts read the privilege as applying even to information not drawn from confidential sources, such as to videos of events that took place in public.

I think that's a misreading of Branzburg, even if one wants to give weight to Justice Powell's concurrence. Justice Powell was basically calling for at most a modest protection against subpoenas, under which courts would reject subpoenas not issued "in good faith," and subpoenas for "information bearing only a remote and tenuous relationship" or "without a legitimate need of law enforcement." (This isn't far off the standard courts are already supposed to apply to subpoenas of third-party witnesses.) For more on this, see In re Grand Jury Subpoena (Judith Miller) (D.C. Cir. 2006). Nonetheless, I must acknowledge that many courts have recognized a First Amendment newsgatherer's privilege, though one that can be overcome on a case-by-case basis by sufficiently strong reasons (rather than a more categorical privilege, such as the attorney-client privilege).

[4.] Moreover, many states have adopted statutory privileges, and Washington is one. In relevant part, its statute (which provides at least as much protection as does the Ninth Circuit's caselaw) reads:

(1) Except as provided in subsection (2) of this section, no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process may compel the news media to testify, produce, or otherwise disclose …

(b) Any news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised. This does not include physical evidence of a crime.

(2) A court may compel disclosure of the news or information described in subsection (1)(b) of this section if the court finds that the party seeking such news or information established by clear and convincing evidence:
(a)(i) In a criminal investigation or prosecution, based on information other than that information being sought, that there are reasonable grounds to believe that a crime has occurred; … and
(b) In all matters, whether criminal or civil, that:
(i) The news or information is highly material and relevant;
(ii) The news or information is critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto;
(iii) The party seeking such news or information has exhausted all reasonable and available means to obtain it from alternative sources; and
(iv) There is a compelling public interest in the disclosure. A court may consider whether or not the news or information was obtained from a confidential source in evaluating the public interest in disclosure.

It appears from news accounts that Judge Lee applied this statute, and found that the elements were satisfied. There is no written opinion from Judge Lee yet, though one is expected in the next several days

NEXT: Laws Protecting Private Employees' Speech and Political Activity Against Employer Retaliation: Broad Protection for Off-Duty Lawful Activity

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  1. This order seems unnecessary. Any footage of violent protest which the media have would already have been aired on the nightly news, wouldn’t it?

    1. That’s a ridiculous supposition. The local nightly news even in a big local story like this is going to air minutes of footage that will be highly edited. Their crews will be on-site taking hours of footage. Even when the local news captures and airs one specific instance, like saying a group overturning a cop car, they are likely only to show the 20-30 second clip of the actual overturning, not the 5-10 minute relevant footage from before and after which could be as useful to the defense as the prosecution.

      And even in the highly unlikely instance that you are right, are the police supposed to monitor and record all the local news stations? I can just imagine the outrage over that.

      1. ” are the police supposed to monitor and record all the local news stations? I can just imagine the outrage over that.”

        I don’t know about outrage, but monitoring (and I presume recording) the local news *is* a standard procedure in command centers….

    2. No.

      Even if they are doing it live, like a baseball game, they have multiple cameras all feeding into a control room where they switch back and forth between cameras, only broadcasting one at a time. When they pre-record it, they’ll edit an hour or more down to 40-80 *seconds* — watch a news broadcast with a stopwatch sometime.

      Now in a riot, you are going to have multiple crews deployed because you neither know where the riot is going to go to nor what is going to happen. And you often have no idea what you’ve got in the background — I’ve been surprised at what I’ve picked up on still photos at a riot. Editing is done under incredible time pressure, and you’re editing what you think you have, *for* what you think you have.

      And that’s if you are bring objective….

    3. I should have clarified that I was being sarcastic. The notation “/sarc” would have conveyed this.

      1. Poe’s law, my friend.

    4. The typical news crew shoots hours of footage every day, only a few minutes of which are edited, packaged and aired to the public.

      As Jimmy points out below, it will be interesting to see the discrepancies, if any, between what the public was shown and what the news crew was actually recording.

  2. “…theft of police guns…”

    WOW — why haven’t we heard about *this* before?!? It’s a damn serious issue because these may be fully automatic weapons — after the North Hollywood Shootout, the LAPD (and I presume other departments) started carrying M-16s in some of their cruisers.

    And while you might remove them if you *know* that the cruiser is going into a riot zone where you may lose custody of the cruiser, the PD had no way of knowing that there would be riots on the first night of them. Hence, they likely responded in cruisers in standard configuration.

    And yes, an actual M-16 *is* a “machine gun” and the ATF does have jurisdiction to pursue theft of them — and I’m told does. So is this a state prosecution or a Federal one, and who are the “police” requesting the footage. Arson of vehicles and theft of weapons sounds a lot like something the ATF would be investigating…

    1. As an added bonus… what do these peaceful protesters who burned cars and stole property need such weapons for? The left can’t say “self-defense” with a straight face… so what’s left? Unless these protesters aren’t peaceful…

    2. arson of the vehicles would most likely involve use of Destructive Devices (see the lawyers in NYC), also ATF related

  3. I’ve always been uneasy about the Sixth Amendment’s clause concerning compulsory witnesses: “to have compulsory process for obtaining witnesses in his favor”. Torture is generally acknowledged to produce unreliable testimony because the torture victim usually wants to say whatever he thinks will stop the torture. Seems to me compulsory witnesses have already shown themselves to be reluctant to tell the truth; how can their testimony be considered reliable? The difference between tortured right now, and the threat of jail time, seems not very much when it comes to getting reliable testimony.

    1. I appreciate the argument, but I’m not sure how far it goes. Most witnesses’ testimony is potentially unreliable. The plaintiff and the (civil or criminal) defendant have obvious biases. (Indeed, for that reason interested parties, including criminal defendants, were generally forbidden from testifying until the mid-1800s.) Police officers have obvious biases; so do crime victims. That a witness is eager to testify may itself be evidence that he has a dog in the fight. Indeed, absent compulsory testimony, the remaining willing witnesses may be especially likely to be biased.

      The legal system’s general approach has been to have more testimony come in, despite these biases, and let the jury try to sort it out. It’s not a perfect approach, but it’s the better one. And at least some compelled witnesses would be relatively fine with testifying precisely because they’re compelled: They can explain to the party against whom their testimony will be used that it’s nothing personal, and that they were forced to do it. In any event, that’s been the approach of our system for centuries.

      Finally, note that the reliability objection to compelled testimony doesn’t really carry over much to compelled production of evidence. (Indeed, evidence turned over under torture can be quite reliable, too; the chief objection to torture used as a means of uncovering tangible evidence has to do with humaneness and the threat of government abuse, not with unreliability.)

      1. Thanks — I had not known that interested parties were forbidden from testifying, or even thought about that flip side of the unwilling witness coin. And the idea that all testimony is unreliable, leaving it to juries to sort out, makes a lot of sense. I know how unreliably I have witnessed events which were recorded, and have wondered what I would do if I were called as a witness.

        Maybe the law is not as big a ass as I usually think 🙂

        1. “Maybe the law is not as big an ass as I usually think,” No, it is. It’s at least that big.

          The arguments made, and the arguments that make sense to you, only apply to the present case. There is a lot of “Anglo-American law” out there. And a lot of star chamber proceedings, Old English suppositions, Older Anglo superstitions, Federalist Papers, colonial pamphlets, early American wild guesses, the list goes on and on. But that doesn’t matter, there is always some ruling from some American court somewhere that will support the judge’s predilections, if not in this circuit, then in another circuit. But that doesn’t matter, either. Judge can’t stat deciso? No problem. Judge can just conjure-up a compelling public interest and then apologize. “Sorry, there is nothing I can do. The law is the law.”

      2. “The legal system’s general approach has been to have more testimony come in, despite these biases, and let the jury try to sort it out.”

        Then turn the testimony or evidence over to a jury, not to the police.

        Telling the press they must help the police identify the people against whom the police wish to retaliate is ridiculous.
        Letting the police rummage through video recordings to determine what is or isn’t evidence is also ridiculous.

        The role of the police should be limited to on-the-spot decisions. Once anything resembling an emergency is over, the role of the police should be minimal, at most. At that point, there is no reason to trust or rely upon the integrity, judgment, or competence of a police officer. Unfortunately, we allow the police to act as investigators, so police officers can continue meddling, intruding, and harassing, indefinitely.

        Fortunately, the First Amendment may, and should, end police investigations involving the press before they begin. I say “fortunately” because this should be a routine matter understood by all Americans, but, given the current state of American jurisprudence, without the Bill of Rights, such matters instead would be settled by reference to the many, many examples of bad case-law.

  4. Question: Is there a 5th Amendment (self incrimination) defense against turning over your personal videos?

    In other words, what if the video *also* shows you committing a crime that was otherwise unknown to the authorities and would not become known to them but for your video.

    1. Interesting point… and if you can make such a claim, how would the state know it is a bogus claim without the very video you aren’t giving over (sans other sources of same or similar evidence like another news crew recording the same event)?

      1. The same way any other contested claim of privilege is evaluated?

        1. Does the state get to claim that you can’t claim the 5th? Is there an example of a court hearing a case re: the allowance of a 5th claim (save for cases where it is argued that by other actions the defendant had waived their 5th like giving some evidence after claiming the 5th previously)?

          1. Yes, of course the party seeking the evidence can argue that the asserted privilege doesn’t apply. How else would it work? And yes, there are countless cases where courts adjudicated those claims.

    2. Say, oh for instance, participating in a riot?

      1. “Say, oh for instance, participating in a riot?”

        I was actually thinking of underaged drinking, which is a big issue in higher ed as it is nearly universally practiced and very selectively punished.

    3. The fifth amendment does not protect you from producing evidence because the substance if the evidence is incriminating. It does protect you from complying if the act of producing the evidence would itself be incriminating.

      To take your example, a subpoena directing you to “produce all video taken on June 5th” would generally not be one where you could assert a privilege. “Produce all video taken on June 5th that shows you engaging in illegal activity” would.

  5. Seeing the carefully edited footage that is looping on the news I would think the unedited video data dump probably has a lot of lawless activity on it. The quick takes that they had to cut in order to make these look like tame protests are telling.

    The media has an obvious agenda here. Make the Feds look like jackbooted thugs and the protesters look like virtuous, peaceful agents of change. However, the truth is far from that and it is getting hard to the national media to keep that narrative going in the face of a push for transparency.

  6. I am not a lawyer, so I’m confused as to how “Generally speaking, all of us have an obligation to turn over evidence relevant to criminal cases” doesn’t make the Fourth Amendment a dead letter.

    1. The Fourth Amendment protects against particular kinds of especially serious intrusions on privacy — most relevant here, the government rummaging through your property based just on a police officer’s say-so. But when the government (or a private party) (1) goes to court, and persuades a judge to order you to turn over information (2) that you yourself will gather, without having the police tear apart your bedroom, that’s seen as a much less serious intrusion (though still an intrusion).

      So for a search, the government generally needs a warrant based on probable cause to believe that the search will uncover evidence of a crime. For a subpoena, the government (or a private litigant) generally just needs a court order based on reason to think that the documents (or the person’s testimony) will be relevant to a court proceeding, and aren’t covered by a testimonial privilege.

  7. It’s a limitation on our liberty and privacy, but one that Anglo-American law has long recognized.

    As everybody knows, already in 15th century England, peasants were required to hand over all audio and video recordings in their possession to any court of law that issued a lawful subpoena!

    1. It’s written in the Magnavox Carta!

  8. Generally speaking, all of us have an obligation to turn over evidence relevant to criminal cases (including not-yet-filed ones) as well as civil lawsuits. That’s so even if we are just bystanders, for instance if the government (or a civil litigant) seeks recordings from our webcams that happened to record evidence relevant to a case.

    Under US law, I’m not required to help someone who is bleeding out on the pavement before me, or who is drowning in my pool, or who is having a heart attack; if I help people, that is a voluntary decision I’m making. We do that because there are many factors that go into making the decision to help someone and it’s not the state’s business to make that decision for me.

    I don’t see why it should be any different for the collection of evidence for a crime I’m not involved in. The state should not have the power to compel third parties to provide evidence for its cases.

    1. I’m not sure that analogy is on point. You’re generally not required to proactively volunteer testimony or evidence, even when you know it’s highly material, just as you’re not generally required to voluntarily intervene to help someone even if it would require only a trivial expenditure of effort to do so. Rather, the duty is triggered when you’re formally served with a subpoena or other compulsory process. By the same token, American governments traditionally have asserted a power to require citizens to assist in preserving the public safety, for instance by requiring militia service, or through conscription, or by forming a posse comitatus, or simply by obliging people to obey reasonable commands from police officers.

    2. First, under certain circumstances you very well may have an obligation to assist someone drowning in *your own* pool.

      In any event, we don’t have constitutional right to not be witness. You many need not affirmatively go to the police or civil litigant with evidence in your possession, but absent 5th Amendment self-incrimination concerns or very specific and limited privileges, you are subject to subpoena to produce such evidence or even testify at trial, and failure to do so will subject you to criminal or civil contempt.

  9. The American courts and American judges:
    “Oh, let me, let me pick a law this time.”

    American law
    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press….”
    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”

    Anglo-American law:
    “It’s a limitation on our liberty and privacy, but one that Anglo-American law has long recognized,” but American law didn’t actually put in writing. But that seems to be OK with law professor, after all, the violation of press freedom was “recognized” by another “law,” and perhaps even by an actual person somewhere at some time in the past, and, anyway, it’s just “a limitation on our liberty and privacy.”

    Does he supposed this might have a “chilling effect” on the willingness of the press to cover political protests in the future?
    Has law professor considered any of the possible cherished and always over-riding “compelling public interests” that this ruling may jeopardize for the future?

  10. Professor Volokh, what do you suppose would be the effect on news gathering if it became generally understood that every news media television crew was in effect an evidence-gathering tool for law enforcement? It is dismaying to see a discussion of this sort with so little deference to 1A press freedom.

    I have said previously and will say again, legal tension between due process freedom to subpoena evidence, and 1A freedom to gather news is unavoidable, perpetual, and should never be resolved in favor of one side or the other. Reporters and publishers must always defy legal orders to produce unpublished material, and accept punishment for their defiance. Courts must always mitigate punishment, lest draconian enforcement too heavily burden press freedom.

    The principle that news gathering can be turned into a tool for prosecution must never succeed.

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