The Volokh Conspiracy

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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.


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KING 5, along with four other Seattle news outlets must comply with a subpoena and give the Seattle Police Department unpublished video and photos from a May 30 racial justice protest….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