To produce his videos, Green often interviews local officials and requests documents under Washington’s Public Records Act (PRA). That law generally requires state agencies to produce government records at the request of the public, with exemptions for certain personal records of public employees, like photographs and birthdates. Members of the “news media,” however, may obtain even these exempt records.
When Green requested such exempt records, the local sheriff’s department denied his request on the grounds that “Libertys Champion” did not qualify as news media. Green’s case eventually went up to the Washington Supreme Court, which affirmed that denial. The court held that under Washington law, only corporations can qualify as “news media.”
Now Green has asked the U.S. Supreme Court to take his case, arguing that this discrimination against non-corporate media violates the First Amendment. Cato, joined by the Reason Foundation, has filed an amicus brief supporting that petition.
In the brief, we note that Green’s case involves two important and largely unanswered questions in First Amendment doctrine. First, how critically should courts scrutinize the government when it discriminates among speakers based solely on their identity? In Citizens United v. FEC (2010), the Court affirmed that such discrimination is constitutionally suspect, but it has declined to provide greater detail on this issue. Second, to what extent does the freedom of the press guaranteed by the First Amendment establish a right of access to government information? The Court has strongly suggested that access to government information can implicate the First Amendment, but it has not elaborated on when that would be the case.
We argue that the Court should take this case to bring greater clarity to these two issues and establish a simple baseline rule: When a state grants access to government information to some but denies it to others based on identity alone, courts should subject that discrimination to the demanding standard of “heightened scrutiny.”
The First Amendment’s Press Clause ensures that everyone is protected in their right to disseminate information to the public. By favoring news media with a corporate structure, Washington’s law advantages the institutional press over citizen-journalists. Such identity-based discrimination is incompatible with the First Amendment. The Court should take this case and preserve the freedom of all the press.
