Amicus Curiae Brief — Brian Green, Petitioner v. Pierce County, Washington

No. 21-614

IN THE

___________

BRIAN GREEN,

PETITIONER,

V.

PIERCE COUNTY, WASHINGTON,

RESPONDENT.

___________

On Petition for Writ of Certiorari to the

Supreme Court of Washington

__________

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE LIBERTY JUSTICE CENTER

AND BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________

Christopher Mills

SPERO LAW LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Daniel R. Suhr

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE CENTER

141 W. Jackson Blvd., Ste. 1065

Chicago, IL 60604

(312) 637-2280

dsuhr@libertyjusticecenter.org

1

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE LIBERTY JUSTICE CENTER

This case presents an issue of constitutional importance, and amicus curiae Liberty Justice Center is

well-suited to discuss the legal basis and practical consequences of the decision below. Liberty Justice Center

timely notified counsel of record for both parties that

it intended to submit the attached brief more than 10

days prior to filing. Counsel for petitioner consented to

the filing of this brief. Counsel for respondent declined

to consent. Therefore, pursuant to this Court’s Rule

37.2(b), Liberty Justice Center respectfully moves for

leave to file the accompanying brief of amicus curiae in

support of petitioner.

The Liberty Justice Center’s interest in this matter

stems from its advocacy for freedom of speech and of

the press, including for small and upstart journalists.

For instance, it represents the petitioners in John K.

MacIver Institute for Public Policy, Inc. v. Evers, No.

20-1814, which asks this Court to review a Seventh

Circuit decision allowing the government to exclude

disfavored journalists from media events based on

their institutional affiliations, their organization’s size

and history, and other criteria that discriminate

against small and independent media outlets. This

case involves similar government discrimination

against individual journalists, and Liberty Justice

Center’s insight and experience would be helpful to the

Court’s evaluation of the petition for certiorari. Therefore, the motion for leave to file should be granted and

the attached amicus brief filed.

2

Respectfully submitted,

Christopher Mills

SPERO LAW LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

November 22, 2021

Daniel R. Suhr

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE CENTER

141 W. Jackson Blvd.

Ste. 1065

Chicago, IL 60604

(312) 637-2280

dsuhr@libertyjusticecenter.org

i

QUESTION PRESENTED

Whether barring individual citizen-journalists from

accessing public records otherwise made available to

news media, for lack of corporate personhood, violates

the First Amendment freedoms of speech and press.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ....................................... v

INTEREST OF THE AMICI CURIAE ....................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT .......................................................................... 2

REASONS FOR GRANTING THE WRIT ................. 3

I. The decision below contradicts this

Court’s and other courts’ precedents. .............. 3

A. The First Amendment requires equal

press access. ................................................ 4

B. Press rights do not depend on corporate structure. ............................................. 5

II. More and more, governments are infringing on First Amendment press rights. .......... 10

CONCLUSION ......................................................... 13

iii

TABLE OF AUTHORITIES

Cases

Am. Broadcasting Cos. v. Cuomo,

570 F.2d 1080 (2d Cir. 1977) ........................... 4

Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) ........................................ 12

Berisha v. Lawson,

141 S. Ct. 2424 (2021) ............................... 12, 13

Branzburg v. Hayes,

408 U.S. 665 (1972) .......................................... 6

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ....................................... 6, 7

Dun & Bradstreet, Inc. v. Greenmoss Builders,

Inc.,

472 U.S. 749 (1985) .......................................... 6

First Nat. Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) ....................................... 8, 9

Flamm v. Am. Ass’n of Univ. Women,

201 F.3d 144 (2d Cir. 2000) ............................. 7

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) .............................................. 4

Janus v. AFSCME,

138 S. Ct. 2448 (2018) ...................................... 1

John K. MacIver Institute for Public Policy, Inc.

v. Evers,

994 F.3d 602 (7th Cir. 2021) ............................ 2

Karem v. Trump,

960 F.3d 656 (D.C. Cir. 2020) .......................... 4

iv

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .......................................... 8

Obsidian Finance Group, LLC v. Cox,

740 F.3d 1284 (9th Cir. 2014) .......................... 7

Perry v. Sindermann,

408 U.S. 593 (1972) ....................................... 4, 5

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ........................................ 12

Snyder v. Phelps,

580 F.3d 206 (4th Cir. 2009) ............................ 7

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017) ...................................... 5

Other Authorities

David B. Sentelle, Freedom of the Press: A Liberty for All or A Privilege for A Few?, 2014

Cato Sup. Ct. Rev. 15 .............................. 8, 9, 10

Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology?

From the Framing to Today, 160 U. Penn.

L. Rev. 459 (2012) ......................................... 7, 8

1

INTEREST OF THE AMICI CURIAE1

The Liberty Justice Center is a nonprofit, nonpartisan, public-interest legal aid firm that seeks to protect

economic liberty, private property rights, free speech,

and other fundamental rights. The Liberty Justice

Center pursues its goals through strategic, precedentsetting litigation to revitalize constitutional restraints

on government power and protections for individual

rights. See, e.g., Janus v. AFSCME, 138 S. Ct. 2448

(2018) (representing petitioner Mark Janus).

The Liberty Justice Center advocates for freedom of

speech and of the press, including for small and upstart journalists. For instance, it represents the petitioners in John K. MacIver Institute for Public Policy,

Inc. v. Evers, No. 20-1814, which asks this Court to review a Seventh Circuit decision allowing the government to exclude disfavored journalists from media

events based on their institutional affiliations, their

organization’s size and history, and other criteria that

discriminate against small or independent media outlets.

1 Pursuant to Rule 37, no counsel for any party au-

thored any part of this brief, and no person or entity

other than the amicus funded its preparation or submission. All parties were timely notified of the filing of

this brief. Counsel for petitioner consented to the filing

of this brief; counsel for responded declined to consent.

Therefore, this brief is accompanied by a motion for

leave to file, in accordance with Rule 37.2(b).

2

INTRODUCTION AND SUMMARY OF ARGUMENT

Washington law provides the news media access to

certain government records. Brian Green, who runs a

YouTube channel focused on state and local politics,

sought such records. If he had been a Seattle Times or

CBS News reporter, he would have gotten them. But

because he has not formed a media corporation, he was

denied. And the Washington Supreme Court upheld

this denial because Green’s YouTube channel was not

“an entity with a legal identity separate from the individual.” App. 1a. The court brushed aside any First

Amendment problem with that holding, reasoning in a

footnote that the “freedom of the press” can be limited

to “news media” and that the government can deny all

access to public information anyway. App. 15a n.5.

Such cavalier treatment of the freedom of speech

and of the press is not unique. But it is wrong. The

First Amendment protects the rights of all Americans

to engage in speech and press activities—not just the

rights of large corporations. And it is no answer to say

that the government could close off all access to public

records. Even if that were true, once the government

decides to provide certain records, it cannot discriminate against journalists based on their corporate affiliations.

The decision below joins other recent decisions in

disregarding the full scope of the First Amendment.

Also before this Court is the Seventh Circuit’s decision

in John K. MacIver Institute for Public Policy, Inc. v.

Evers, 994 F.3d 602 (7th Cir. 2021), which likewise discriminated based on corporate status—there, that the

journalists were employed by the same parent entity

as employees doing policy analysis. See Petition for

3

Certiorari, No. 20-1814 (Sept. 7, 2021). Many other

government actions have likewise disregarded the

First Amendment’s core protection for freedom of the

press. All too often, the government can use a judicial

license to discriminate to exclude those journalists

that the government dislikes. The result is most odious

to the First Amendment: discrimination against individuals based on the content of their speech. This

Court’s review is urgently needed.

REASONS FOR GRANTING THE WRIT

I. The decision below contradicts this Court’s

and other courts’ precedents.

In the Washington Supreme Court’s view, denying

Mr. Green access to government records did not implicate the First Amendment for two reasons. First,

“there are no freedom of the press implications if there

is no news media.” App. 15a n.5. So according to the

court below, because Mr. Green did not satisfy the

State’s definition of “news media,” he was unprotected

by the freedom of the press. See ibid.

Second, the court stated that “there is no First

Amendment right to public information.” Ibid. Though

the court did not explain the import of this statement,

presumably it meant to say that because there is no

right to the government information here, the government’s discriminatory exclusion of Mr. Green did not

violate the First Amendment.

As matters of First Amendment law, both rationales

are wrong. And they conflict with many decisions both

of this Court and of the federal courts of appeals.

4

A. The First Amendment requires equal press

access.

Taking the Washington Supreme Court’s second rationale first, even if no general right to government information exists, the government may not violate First

Amendment rights once it chooses to provide information. Even the opinion cited by the decision below

says that “once government has opened its doors,” the

First Amendment “assure[s] the public and the press

equal access.” Houchins v. KQED, Inc., 438 U.S. 1, 16

(1978) (Stewart, J., concurring in the judgment). And

most courts of appeals to consider the question have

held that “once there is a public function, public comment, and participation by some of the media, the First

Amendment requires equal access to all of the media.”

Am. Broadcasting Cos. v. Cuomo, 570 F.2d 1080, 1083

(2d Cir. 1977); accord Karem v. Trump, 960 F.3d 656,

660 (D.C. Cir. 2020) (“[T]he protection afforded newsgathering under the first amendment requires that

this access not be denied arbitrarily or for less than

compelling reasons.” (cleaned up)); Pet. 20–22 (collecting cases).

This rule finds support in the Court’s precedents

about participation in publicly available programs. For

at least 75 years, “this Court has made clear that even

though a person has no ‘right’ to a valuable governmental benefit and even though the government may

deny him the benefit for any number of reasons,” the

government “may not deny a benefit to a person on a

basis that infringes his constitutionally protected interests.” Perry v. Sindermann, 408 U.S. 593, 597

(1972). If “the government could deny a benefit to a

person because of his constitutionally protected speech

or associations,” for example, “his exercise of those

5

freedoms would in effect be penalized and inhibited.”

Ibid. Because “[t]his would allow the government to

produce a result which it could not command directly,”

it “is impermissible.” Ibid. (cleaned up). And this principle holds regardless of the First Amendment right at

stake. See, e.g., Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S. Ct. 2012, 2026 (2017) (Gorsuch,

J., concurring in part) (“Generally the government

may not force people to choose between participation

in a public program and their right to free exercise of

religion.”).

If the government may not condition participation

in its programs in ways that would violate the Constitution, neither may it condition access to public information in ways that the First Amendment would not

tolerate directly. As discussed next, First Amendment

rights ordinarily could not hinge on corporate identity.

And at a minimum, the government would need to justify its condition. But the decision below breezed past

these issues with no discussion. That was error, and it

implicates a division among the courts of appeals over

whether and how governments may justify unequal

press access. See Pet. 19–23; see also Pet. for Cert. 10–

19, John K. MacIver Institute for Public Policy v. Evers,

No. 21-388 (Sept. 7, 2021).

B. Press rights do not depend on corporate

structure.

Turning to the Washington Supreme Court’s first

rationale—that the government may define solo or

nontraditional journalists out of the First Amendment’s protection—it also conflicts with decisions of

this Court and many other courts. Those decisions

6

leave no doubt that the First Amendment does not depend on corporate formalities. So clear is this rule that

summary reversal here would be warranted.

This Court has held that “[f]reedom of the press is a

fundamental personal right which is not confined to

newspapers and periodicals, but instead “comprehends every sort of publication which affords a vehicle

of information and opinion.” Branzburg v. Hayes, 408

U.S. 665, 704 (1972) (cleaned up). The same “informative function” performed by the “organized press” can

also be “performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.” Ibid.

Thus, “liberty of the press is the right of the lonely

pamphleteer who uses carbon paper or a mimeograph

just as much as of the large metropolitan publisher.”

Ibid. “[T]he rights of the institutional media are no

greater and no less than those enjoyed by other individuals or organizations engaged in the same activities.” Dun & Bradstreet, Inc. v. Greenmoss Builders,

Inc., 472 U.S. 749, 784 (1985) (Brennan, J., dissenting); id. at 783–84 (noting that “at least six Members

of this Court” agreed with that proposition).

The Court’s disapproval of content-based speech restrictions supports this view. “[R]estrictions based on

the identity of the speaker are all too often simply a

means to control content.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). “By taking the

right to speak from some and giving it to others, the

[g]overnment deprives the disadvantaged person or

class of the right to use speech to strive to establish

worth, standing, and respect for the speaker’s voice.”

Id. at 340–41. Indeed here, as the dissent below

pointed out, the government’s position evinces “a certain disapprobation, as if Libertys [sic] Champion is

7

simply unworthy of being considered news media or

that what it seeks here is not newsworthy.” App. 30a.

The lower courts have echoed this Court’s view of

the freedom of the press. For instance, the Second and

Fourth Circuits have held that “a distinction drawn according to whether the defendant is a member of the

media or not is untenable.” Flamm v. Am. Ass’n of

Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); see

Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir.

2009) (“Any effort to justify a media/nonmedia distinction rests on unstable ground”). Yet that is precisely

the distinction drawn by the court below, which found

no constitutional problem with it.

The Ninth Circuit too has held that “[t]he protections of the First Amendment do not turn on whether

the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a

story.” Obsidian Finance Group, LLC v. Cox, 740 F.3d

1284, 1291 (9th Cir. 2014). The conflict between this

holding and the decision below is especially troubling,

for it means that the level of First Amendment protection in the State of Washington depends on whether

the litigation is in state or federal court.

The circuits’ decisions—unlike the decision below—

necessarily follow from the First Amendment itself.

Start with the text. As Justice Scalia explained, it

would be “passing strange to interpret the phrase ‘the

freedom of speech, or of the press’ to mean, not everyone’s right to speak or publish, but rather everyone’s

right to speak or the institutional press’s right to publish. No one thought that is what it meant.” Citizens

United, 558 U.S. at 390 n.6 (concurring opinion).

8

The history confirms what the text suggests. “In the

late 18th century, state supreme courts, state constitutions, and commentators uniformly referred to

‘every man’ or ‘every freeman’ or ‘every citizen’s’ expressive rights,” including freedom of the press. David

B. Sentelle, Freedom of the Press: A Liberty for All or

A Privilege for A Few?, 2014 Cato Sup. Ct. Rev. 15, 23;

see generally Eugene Volokh, Freedom for the Press as

an Industry, or for the Press as a Technology? From the

Framing to Today, 160 U. Penn. L. Rev. 459, 465–98

(2012). “[P]re-First Amendment commentators who

employed the term ‘freedom of speech’ with great frequency, used it synonymously with freedom of the

press.” First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765,

799 (1978) (Burger, C.J., concurring). And the typical

“press” people at the Founding were “individual authors” like Thomas Paine, an excise officer by trade.

Sentelle, supra, at 24. It would be far-fetched to suggest that the First Amendment did not protect Mr.

Paine’s pamphlets, to say nothing of the anonymously

published Federalist Papers written by James Madison, Alexander Hamilton, and John Jay. See McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 360 (1995)

(Thomas, J., concurring) (“When the Framers thought

of the press, they did not envision the large, corporate

newspaper and television establishments of our modern world.”).

This broad understanding of “the press” “was even

more clearly established” by the Fourteenth Amendment, which applied the First Amendment to the

States. Volokh, supra, at 498. A “long line” of contemporaneous cases and treatises explained “that the institutional press had no greater rights than anyone

else.” Id. at 498–500. Thus, the text and history each

9

refute the decision below’s cramped interpretation of

the First Amendment.

The practical problems with the decision below also

counsel against its interpretation of the First Amendment. “The very task of including some entities within

the ‘institutional press’ while excluding others,

whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing

system of Tudor and Stuart England—a system the

First Amendment was intended to ban from this country.” Bellotti, 435 U.S. at 801 (Burger, C.J., dissenting). Such “definitional problem[s] pose[] an insurmountable hurdle to the press-as-institution interpretation.” Sentelle, supra, at 21.

Finally, the Washington Supreme Court’s apparent

confusion over the scope of its review does not affect

this Court’s own review. Though the dissenting opinion below thought that “this case does not directly concern the First Amendment,” App. 26a, that is incorrect. The majority understood that Green pressed a

First Amendment argument; it just found that argument so meritless that it dismissed it with a curt (and

incorrect) footnote. See App. 15a n.5. But there is no

question that throughout this litigation, Green raised

his First Amendment claims, and they are properly before this Court now. See, e.g., App. 63a-65a, 70a-73a. A

lower court cannot insulate its decision from review by

failing to grapple with a presented argument. Review

is needed.

10

II.

More and more, governments are infringing on First Amendment press

rights.

Unfortunately, the government’s conduct below is

not unique. Many examples show that governments

are increasingly contriving distinctions between members of the press to avoid public disclosure and accountability. Though Mr. Green and similar citizen

journalists are sometimes called “nontraditional” journalists, in truth they are much the same as what the

Founders would have recognized as press members—

like Thomas Paine. Yet the governments have invoked

various, arbitrary distinctions to justify violating the

First Amendment with regard to such citizen journalists.

Judge Sentelle described one recent example in

which “the North Carolina Board of Dietetics/Nutrition threatened to send a blogger to jail for describing

his battle against diabetes and encouraging others to

use his diet and lifestyle as an example.” Sentelle, supra, at 21. The Board did not make similar threats

against the “professional” “authors of many of the

books on the Amazon bestseller list.” Id. at 22.

Another example comes from the MacIver case

pending before this Court. There, after a new governor

took office in Wisconsin, his press office decided to exclude the MacIver News Service from press events.

The News Service is a project of the John K. MacIver

Institute for Public Policy, and its professional journalists had long been credentialed to cover Wisconsin government. But the new governor’s office decided that

the MacIver journalists were not “bona fide,” later formulating a list of supposedly neutral criteria for post

hoc justification.

11

These criteria—which were non-exhaustive and

merely informed the office’s discretion—included:

whether the journalist was employed by an organization “whose principal business is news dissemination”;

how “established” the parent organization was; the

journalist’s pay; the organization’s “credibility” and

“real or perceived conflicts of interest”; any “pressures

from advertisers” or “donors”; and, participation in any

“advocacy.” Pet. for Cert. 7–8, John K. MacIver Institute for Public Policy v. Evers, No. 21-388 (Sept. 7,

2021).

Both the district court and the Seventh Circuit

thought that this exclusion from press events otherwise open to the press was permissible under public

forum analysis. As the certiorari petition there explains, that view conflicts with the decisions of other

courts of appeals. See id. at 10–19. It is also inconsistent with the First Amendment and this Court’s

precedents. See id. at 19–32. But for present purposes,

the important point is that the government sought to

discriminate against certain media outlets. No one

could argue that First Amendment rights could normally be made to turn on one’s participation in other

advocacy, how much one is paid, and how many people

listen to one’s speech—much less a government official’s discretionary balancing of these and other unidentified criteria. Yet just like the decision below’s focus on corporate identify, the courts in MacIver read

away First Amendment press rights by treating the

Press Clause differently from all other parts of the

First Amendment.

Allowing this type of manipulation would have serious consequences. First, as mentioned, these press ex-

12

clusions are often served with a strong whiff of content-based discrimination. The government here dislikes what it views as the speech of a local gadfly who

explores local stories that larger media outlets will not

cover. The governor’s office in MacIver disliked the politics of the journalists’ affiliated organization. Such

content-based discrimination is inevitable when governments get to pick and choose which journalists are

“bona fide.” And this Court always applies strict-scrutiny to content-based restrictions on speech. See Reed

v. Town of Gilbert, 576 U.S. 155, 163 (2015). That is

because, “[a]bove all else, the First Amendment means

that government has no power to restrict expression

because of its message, its ideas, its subject matter, or

its content.” Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221, 229 (1987).

Second, these infringements are especially significant given that, “[s]ince 1964, however, our Nation’s

media landscape has shifted in ways few could have

foreseen.” Berisha v. Lawson, 141 S. Ct. 2424, 2427

(2021) (Gorsuch, J., dissenting from denial of certiorari). Individual journalists like Mr. Green can easily

reach a much larger audience than ever before through

the Internet. Citizens have access to a far greater

breadth of information. So now, they could follow hyper-local issues of the type Mr. Green covers and hold

their leaders accountable. From governments that do

not like such accountability, the hostility shown toward Mr. Green, the MacIver journalists, and so many

others is perhaps unsurprising. But that does not

make it consistent with the First Amendment, which

“protects the freedom of the press not as a favor to a

particular industry, but because democracy cannot

function without the free exchange of ideas. To govern

themselves wisely, the framers knew, people must be

13

able to speak and write, question old assumptions, and

offer new insights.” Id. at 2425–26.

Protecting the First Amendment speech and press

rights of journalists like Mr. Green is necessary to allow the type of untrammeled, open debate envisioned

by the Founders to flourish. The recent trend of governments trying to silence such voices confirms the

need for this Court to address the issue.

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be granted or the decision below summarily reversed. In the alternative, this case could be held for

John K. MacIver Institute for Public Policy, Inc. v.

Evers, No. 20-1814, which squarely presents a conflict

between the federal courts of appeal over how to analyze claims of unequal press access.

Respectfully submitted,

Christopher Mills

SPERO LAW LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

November 22, 2021

Daniel R. Suhr

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE CENTER

141 W. Jackson St.

Ste. 1065

Chicago, IL 60604

(312) 637-2280

dsuhr@libertyjusticecenter.org