Seattle Judge Belays Order to Turn Over Media Footage of Black Lives Matter Protest

Protesters gathered by the Seattle Police Department’s East Precinct in Seattle on June 12, 2020. (Courthouse News photo/June Williams)

SEATTLE (CN) — A Seattle judge on Thursday put the brakes on an order requiring all local major media outlets to turn over to police unedited video of a Black Lives Matter protest, deciding instead that he will conduct an in camera review and decide what — if any — footage will go to police.

King County Superior Court Judge Nelson Lee offered to postpone his summer vacation to examine the footage but ordered a 21-day stay while the media decides on an appeal.

Lee said he has “utmost respect for members of the media” and understood only rare incidents could pierce Washington’s Reporter Shield Law.

Under the shield law, the party seeking disclosure must show the information sought is “highly material and relevant,” “critical or necessary” to a claim that has compelling public interest and must show it has “exhausted all reasonable and available means.”

On July 23, Lee ordered the Seattle Times and television stations KIRO, KING, KOMO and KCPQ turn over all videos and photos taken over a 90-minute period in the downtown blocks surrounding a demonstration protesting the killing of George Floyd in response to a subpoena by the Seattle Police Department. The footage Seattle police seek may include images of potential suspects torching police cars and stealing weapons from the vehicles.

At Thursday’s procedural hearing, Lee said he “carefully balanced” the importance of a free media against “overwhelming concerns for public safety.”

The media outlets’ attorney Eric Stahl with Davis Wright Tremaine said he appreciated Lee’s effort to find a compromise by personally reviewing the footage, but still had concerns journalists faced “very real danger” covering protests.

Reporters Committee for Freedom of the Press shared similar concerns in an amicus brief.

“Requiring members of the news media to assist law enforcement officers in an ongoing investigation by turning over their journalistic work product increases the likelihood that members of the public will incorrectly perceive journalists to be an extension of law enforcement, rather than independent press,” the group said in its brief.

“Undermining the public’s perception of journalists as independent of government entities, including and especially law enforcement, is particularly problematic in the context of protests, where reporters may be exposed to risk of physical harassment and harm.”

Stahl requested the three-week stay while he confers with the media outlets about an appeal.

Brian Esler, an attorney representing the Seattle Police Department, did not object to the stay but said he would request an expedited review if there is an appeal.

Seattle Times executive editor Michele Matassa Flores said in an editorial the newspaper’s opposition to the subpoena does not mean the paper supports criminals.

“It’s not that we want criminals to run free, or that we’re motivated by kinship with protesters. In fact, if protesters sued us for unpublished footage to argue police had brutalized them, we would react the same way. If the issue centered on a gun-rights demonstration instead of one against police brutality, we would react the same way. If any source from any public agency, private business, political party or citizen group sought raw notes or any other unpublished material from us, we would guard that material just as vigorously,” Flores wrote.

Times reporters have been punched, harassed and threatened by people at Seattle protests who are committing crimes and don’t want to be captured on film, according to the editorial.

“When they accuse us of collaborating with law enforcement, the best we can do is state — honestly and sincerely — that we do not. While that may not guarantee our safety, it can help swing opinion within a small group in the heat of the moment. And it certainly helps us maintain credibility in the bigger picture over the arc of time.

“But it gets harder to make that point with conviction if we know our resolve may not matter in court,” Flores wrote.

At a City Council briefing on Monday, Councilmember Andrew Lewis said he petitioned City Attorney Pete Holmes to drop the subpoena.

Councilmember Teresa Mosqueda called the subpoena “abhorrent.”

“We are going to put at risk the lives of journalists,” she said.

Some journalists were already experiencing harassment due to the ruling.

Hanna Scott, a reporter with KIRO, said in a tweet that she was blocked by protesters from covering a weekend demonstration in Seattle because of the subpoena.

“This ruling cited by protesters Sat/Sun as reason for myself/other media to get out/they dont trust us. One leader on megaphone warned crowd to watch out for @komonews @Q13FOX @KING5Seattle & @KIRO7Seattle — KOMO blocked from rally last night. I can go on,” Scott tweeted.

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