The Supreme Court should protect citizen journalists

The First Amendment protects the freedom of the press. But who is called the “press”? Darnella Frazier was not an employee of a credentialed news company when she pulled out her cell phone and recorded one of the most consecutive stories of 2020. Neither did George Holliday when he used his camcorder to save history in 1991. Without citizen journalism, Rodney King and George Floyd might not be household names today.

As these examples show, anyone can make and break the news. Citizen journalists are a crucial part of “the press”. And the Supreme Court now has the opportunity to affirm that independent journalists have the same constitutional rights as corporate media.

Brian Green is a quintessential freelance journalist. Since 2013, he regularly posts investigative journalism videos on his YouTube channel.champion of freedomswith a focus on local government and court affairs in Pierce County, Washington. The channel has steadily grown to have over 18,000 subscribers.

To produce his videos, Green interviews local officials and requests documents under Washington’s Public Records Act. This law generally requires state agencies to produce government documents upon public request. But some personal records of public employees, such as photographs and dates of birth, are only accessible to the “news media”, not the general public.

Green requested such personal records during his reporting, but was denied. When he appealed to the Washington Supreme Court, he was says that as a freelance journalist, he could never be considered the “media.” Only corporations, according to this court, could qualify as “news media” under Washington law. Now Green has asked the United States Supreme Court to take his casearguing that this discrimination against noncommercial media violates the First Amendment.

Of course, the Constitution does not require states to allow access to all the information they have. But forty-three years ago, Judge Potter Stewart persuaded argued that the first amendment does “ensure the public and the press have equal access once the government has opened its doors” to information under its control. In other words, once a state like Washington decides that some can access his personal files and use them for journalism, he cannot refuse this same access to other speakers.

Judge Stewart was right, and it is time for the whole Court to adopt this rule. The press clause was designed secure at everyone the possibility of publishing information to the public. The editors would have recognized that the lone pamphleteer is just as much a part of the press as the biggest newspaper.

Granting special government access and privileges to corporate media is inconsistent with these core values. If state governments had carte blanche to selectively withhold information from certain disadvantaged citizens, the press clause would lose much of its vitality. Speaker discrimination is a tool governments can easily use to influence the content of the news we all consume. Justice Stewart’s rule would protect citizen journalists from such abuse and help foster access to more diverse sources of information and commentary.

Moreover, an equal access rule would not render states powerless to protect sensitive information. Washington could have limited access to those who could demonstrate they would use the information for legitimate journalistic purposes. Such a system would base access to information on the conduct of those requesting the information, not their mere identity. And of course, Washington could have chosen to deny everyone access, thus placing everyone on an equal footing.

But what a state cannot do, at least without compelling justification, is selectively provide information to certain members of the news media based solely on their identity. The Court should take up the Green case, put an end to Washington’s unequal plan and guarantee the maintenance of the freedom of all the press.

Thomas Berry is a research fellow at the Robert A. Levy Center for Constitutional Studies at the Cato Institute, where Gregory Mill is a legal associate. Cato deposited a amicus brief supporting Green’s petition to the Supreme Court.

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