HONORABLE BRIAN MCDONALD

1 Department 48
Noted for Consideration: May 21, 2020
2
Without Oral Argument
3

7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING
8
WASHINGTON LEAGUE FOR INCREASED
9 TRANSPARENCY AND ETHICS, et al., NO. 20-2-07428-4 SEA

10 Plaintiffs, MOTION OF NCTA – THE INTERNET &

TELEVISION ASSOCIATION AND THE
11 v. REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS TO FILE AN AMICI
12 FOX CORPORATION, et al.
CURIAE BRIEF
13 Defendants.

14
I. RELIEF REQUESTED
15
NCTA – The Internet & Television Association (“NCTA”) and the Reporters Committee for
16
Freedom of the Press (“Reporters Committee”) respectfully request that this Court grant leave to file
17
the attached amici curiae brief in support of the Fox Defendants’ motion to dismiss. See Parsons v.
18
Dep’t of Soc. & Health Servs., 129 Wn. App. 293, 302, 118 P.3d 930, 934 (2005) (holding that a
19
trial court has discretion to permit amicus participation “if it may be helpful to the court”).
20
II. STATEMENT OF FACTS
21
NCTA is the principal trade association of the cable television industry in the United States,
22
representing more than 200 cable networks, including news providers, and cable operators serving
23
nearly 80 percent of U.S. cable subscribers. NCTA and its membership are united by the bedrock
24
proposition that all cable programming networks, and all news outlets, are protected by the First
25
MOTION OF NCTA – THE INTERNET & CORR CRONIN LLP
TELEVISION ASSOCIATION AND THE REPORTERS 1001 Fourth Avenue, Suite 3900
COMMITTEE FOR FREEDOM OF THE PRESS TO Seattle, WA 98154
FILE AN AMICI CURIAE BRIEF - 1 (206) 625-8600
 1 Amendment’s guarantee of a free press and freedom of speech.

2 The Reporters Committee is an unincorporated nonprofit association. The Reporters

3 Committee was founded by leading journalists and media lawyers in 1970 when the nation’s news

4 media faced an unprecedented wave of government subpoenas forcing reporters to name confidential

5 sources. Today, its attorneys provide pro bono legal representation, amicus curiae support, and other

6 legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.

7 NCTA and the Reporters Committee are familiar with the constitutional issues raised in

8 Defendants’ motion to dismiss, as well as the arguments asserted in Plaintiff’s opposition. NCTA

9 and the Reporters Committee submit this proposed amici brief in the interest of ensuring that the

10 Court is fully informed about the constitutional issues at stake and the dangerous implications of

11 Plaintiff’s contention that news providers that distribute content over cable systems are somehow

12 excluded from the First Amendment’s purview. NCTA and the Reporters Committee frequently

13 participate in litigation in courts throughout the country, including in particular to ensure that their

14 members’ First Amendment protections are upheld.

15 III. STATEMENT OF ISSUES

16 Whether the Court should consider the brief of amici curiae NCTA and the Reporters

17 Committee in adjudicating the First Amendment issues presented in the motion to dismiss filed by

18 the Fox News Defendants.

19 IV. EVIDENCE RELIED UPON

20 NCTA and the Reporters Committee do not rely on any evidence in bringing this motion.

21 V. ARGUMENT

22 Washington courts routinely accept amicus curiae briefs in order “to help the court with

23 points of law.” Ochoa Ag Unlimited, L.L.C. v. Delanoy, 128 Wn. App. 165, 172, 114 P.3d 692, 695

24 (2005). Trial courts are no exception: This Court has “discretion to permit” amicus “participation

25
MOTION OF NCTA – THE INTERNET & CORR CRONIN LLP
TELEVISION ASSOCIATION AND THE REPORTERS 1001 Fourth Avenue, Suite 3900
COMMITTEE FOR FREEDOM OF THE PRESS TO Seattle, WA 98154
FILE AN AMICI CURIAE BRIEF - 2 (206) 625-8600
 1 if it may be helpful to the court.” Parsons, 129 Wn. App. at 302. Amici provide a “time-honored”

2 service to the courts, Young Ams. For Freedom v. Gorton, 91 Wn.2d 204, 209, 588 P.2d 195, 198

3 (1978), and frequently expound on issues in ways that the court finds worthy of consideration. See,

4 e.g., Chelan County v. Nykreim, 146 Wn.2d 904, 933, 52 P.3d 1, 15 (2002) (considering

5 consequences “amici curiae point[ed] out”); Indigo Real Estate Servs. v. Rousey, 151 Wn. App. 941,

6 952, 215 P.3d 977, 982 (2009) (“Amici have raised several issues, however, to which we provide

7 the following considerations . . . .”).

8 The issues presented in this case are of substantial constitutional significance. Plaintiff’s

9 opposition brief raised for the first time the argument that cable news providers somehow lack First

10 Amendment protection. The perspective and experience of NCTA and the Reporters Committee are

11 likely to be of assistance to the Court in deciding this issue, which is of great importance to the news

12 media and to the public at large. The Court has discretion to consider the views of NCTA and the

13 Reporters Committee and should do so to ensure that the important First Amendment interests at

14 stake in this case are fully addressed and considered.

15 VI. CONCLUSION

16 NCTA and the Reporters Committee respectfully request that the Court grant leave for

17 NCTA and the Reporters Committee to participate as amici curiae and submit the brief appended to

18 this motion.

19

20

21

22

23

24

25
MOTION OF NCTA – THE INTERNET & CORR CRONIN LLP
TELEVISION ASSOCIATION AND THE REPORTERS 1001 Fourth Avenue, Suite 3900
COMMITTEE FOR FREEDOM OF THE PRESS TO Seattle, WA 98154
FILE AN AMICI CURIAE BRIEF - 3 (206) 625-8600
 1 DATED this 18th day of May, 2020.

2
I certify that this memorandum contains 670 words,
3 in compliance with the Local Civil Rules.
4
By s/ Steven W. Fogg
5 Steven W. Fogg, WSBA No. 23528
CORR CRONIN LLP
6 1001 Fourth Avenue
Suite 3900
7 Seattle, WA 98154
Tel: (206) 625-8600
8 Email: sfogg@corrcronin.com
9 Attorney for Amici Curiae NCTA – The Internet &
Television Association and the Reporters
10
Committee for Freedom of the Press
11
Matthew A. Brill (pro hac vice pending)
12 Matthew T. Murchison (pro hac vice pending)
Shannon Grammel (pro hac vice pending)
13 LATHAM & WATKINS LLP
555 11th Street, NW
14 Suite 1000
Washington, DC 20004
15 Tel: (202) 637-2200
16 Email: Matthew.Brill@lw.com
Matthew.Murchison@lw.com
17 Shannon.Grammel@lw.com

18 Attorneys for Amicus Curiae NCTA – The Internet

& Television Association
19

20

21

22

23

24

25
MOTION OF NCTA – THE INTERNET & CORR CRONIN LLP
TELEVISION ASSOCIATION AND THE REPORTERS 1001 Fourth Avenue, Suite 3900
COMMITTEE FOR FREEDOM OF THE PRESS TO Seattle, WA 98154
FILE AN AMICI CURIAE BRIEF - 4 (206) 625-8600
 CERTIFICATE OF SERVICE
1

2 I, Donna Patterson, declare that I am employed by the law firm of Corr Cronin LLP, a

3 citizen of the United States of America, a resident of the state of Washington, over the age of

4 eighteen (18) years, not a party to the above-entitled action, and competent to be a witness herein.

5 On May 18, 2020, I caused a true and correct copy of the foregoing document to be served

6 on the persons listed below in the manner indicated:

Catherine C. Clark, WSBA #21231  Via Hand Delivery
7  Via First Class Mail
Law Office of Catherine Clark PLLC
2200 6th Ave., Suite 1250  Via Facsimile
8  Via Electronic Mail
Seattle, WA 98121
Phone: (206) 838- 2528  Via King County Clerk E-Service
9
Fax: (206) 374- 3003
10 Email: Cat@loccc.com

11 Attorney for Washington League For Increased

Transparency And Ethics
12 Tyler L. Farmer, WSBA #39912  Via Hand Delivery
Kristin E. Ballinger, WSBA #28253  Via First Class Mail
13  Via Facsimile
Harrigan Leyh Farmer & Thomsen LLP
999 Third Avenue, Suite 4400  Via Electronic Mail
14  Via King County Clerk E-Service
Seattle, WA 98104
15 Tel: (206) 623-1700
Fax: (206) 623-8717
16 Email: tylerf@harriganleyh.com
Email: kristinb@harriganleyh.com
17
Attorneys for Fox Defendants
18  Via Hand Delivery
Christopher Lovrien (pro hac vice)
Jones Day  Via First Class Mail
19  Via Facsimile
555 South Flower Street, 50th Floor
Los Angeles, CA 90071  Via Electronic Mail
20  Via King County Clerk E-Service
Tel: (213) 243-2316
21 Fax: (213) 243-2539
Email: cjlovrien@jonesday.com
22
Emily Faye Knox (pro hac vice)
23 Jones Day
555 California Street 26th Floor
24
San Francisco, California 94104
25 Tel: (415) 875-5815
Fax: (415) 875-5700
MOTION OF NCTA – THE INTERNET & CORR CRONIN LLP
TELEVISION ASSOCIATION AND THE REPORTERS 1001 Fourth Avenue, Suite 3900
COMMITTEE FOR FREEDOM OF THE PRESS TO Seattle, WA 98154
FILE AN AMICI CURIAE BRIEF (206) 625-8600
 Email: egoldbergknox@jonesday.com
1
Michael A. Carvin (pro hac vice)
2
Anthony J. Dick (pro hac vice)
3 Jones Day
51 Louisiana Avenue, N.W.
4 Washington, D.C. 20001-2113
Tel: (202) 879-3939
5 Fax: (202) 626-1700
Email: macarvin@jonesday.com
6 Email: ajdick@jonesday.com
7 Attorneys for Fox Defendants
8
I declare under penalty of perjury under the laws of the state of Washington that the
9
foregoing is true and correct.
10
DATED at Seattle, Washington on May 18, 2020.
11

12 /s/ Donna Patterson

Donna Patterson
13

14

15

16

17

18

19

20

21

22

23

24

25

MOTION OF NCTA – THE INTERNET & CORR CRONIN LLP

TELEVISION ASSOCIATION AND THE REPORTERS 1001 Fourth Avenue, Suite 3900
COMMITTEE FOR FREEDOM OF THE PRESS TO Seattle, WA 98154
FILE AN AMICI CURIAE BRIEF (206) 625-8600
APPENDIX A
 HONORABLE BRIAN MCDONALD
1 Noted for Hearing: May 21, 2020
Without Oral Argument
2

7 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

8 WASHINGTON LEAGUE FOR
INCREASED TRANSPARENCY AND No. 20-2-07428-4 SEA
9 ETHICS, et al.,
AMICI CURIAE BRIEF OF NCTA – THE
10 Plaintiffs, INTERNET & TELEVISION
11 ASSOCIATION AND THE REPORTERS
v. COMMITTEE FOR FREEDOM OF THE
12 PRESS
FOX CORPORATION, et al.
13
Defendants
14

15
I. IDENTITY AND INTEREST OF AMICI CURIAE
16
This brief is filed on behalf of amici curiae NCTA – The Internet & Television
17
Association (“NCTA”) and the Reporters Committee for Freedom of the Press (the “Reporters
18
Committee”).
19
NCTA is the principal trade association of the cable television industry in the United
20
States, representing more than 200 cable networks, including news providers, and cable
21

22 operators serving nearly 80 percent of U.S. cable subscribers. NCTA and its membership are

23 united by the bedrock proposition that all cable programming networks, and all news outlets,

24 are protected by the First Amendment’s guarantee of a free press and freedom of speech. NCTA

25 submits this brief in the interest of ensuring that the Court is fully informed about the

AMICI CURIAE BRIEF OF NCTA – THE INTERNET & CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
TELEVISION ASSOCIATION AND THE REPORTERS Seattle, Washington 98154-1051
COMMITTEE FOR FREEDOM OF THE PRESS – 1 Tel (206) 625-8600
Fax (206) 625-0900
 1 constitutional issues at stake and the dangerous implications of Plaintiff’s contention that news
2 providers that distribute content over cable systems are somehow excluded from the First
3 Amendment’s purview.
4 The Reporters Committee is an unincorporated nonprofit association. The Reporters
5 Committee was founded by leading journalists and media lawyers in 1970 when the nation’s
6
news media faced an unprecedented wave of government subpoenas forcing reporters to name
7
confidential sources. Today, its attorneys provide pro bono legal representation, amicus curiae
8
support, and other legal resources to protect First Amendment freedoms and the newsgathering
9
rights of journalists.
10

11 II. ARGUMENT
12 The Plaintiff in this case has asserted that news providers do not enjoy First Amendment
13 protection when they distribute their programming over a cable television system. That radical
14 proposition is plainly wrong: The First Amendment unquestionably protects “[c]able
15 programmers.” Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 636 (1994).
16 Since the advent of cable television, the Supreme Court has explained time and again
17 that cable programmers are protected by the First Amendment. As the Court explained more
18 than 25 years ago in Turner I, “[t]here can be no disagreement on an initial premise: Cable
19 programmers and cable operators engage in and transmit speech, and they are entitled to the
20 protection of the speech and press provisions of the First Amendment.” 512 U.S. at 636. The
21 Court explained that “[t]hrough ‘original programming or by exercising editorial discretion,’”
22 cable programmers “‘see[k] to communicate messages on a wide variety of topics and in a wide
23 variety of formats.’” Id. (second alteration in original) (quoting Los Angeles v. Preferred
24 Commc’ns, Inc., 476 U.S. 488, 494 (1986)). And those messages, whether they consist of news
25 or entertainment, enjoy the protections of the First Amendment, no less than content published

AMICI CURIAE BRIEF OF NCTA – THE INTERNET & CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
TELEVISION ASSOCIATION AND THE REPORTERS Seattle, Washington 98154-1051
COMMITTEE FOR FREEDOM OF THE PRESS – 2 Tel (206) 625-8600
Fax (206) 625-0900
 1 by newspapers or broadcast over the air. See, e.g., Leathers v. Medlock, 499 U.S. 439, 444

2 (1991) (“Cable television provides to its subscribers news, information, and entertainment. It

3 is engaged in ‘speech’ under the First Amendment, and is, in much of its operation, part of the

4 ‘press.’”); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 811 (2000) (explaining

5 that Playboy’s adult cable programming was fully protected by the First Amendment).

6 While all cable programming enjoys First Amendment protection, the constitutional

7 prohibition against unwarranted governmental interference with programming on news

8 networks is especially clear. As the Supreme Court has explained, “speech on public issues

9 occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to

10 special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (citation omitted). That

11 special protection does not depend on the manner in which such speech is distributed; it is

12 grounded in the nature of the speech itself. News media thus enjoy First Amendment protection

13 whether they distribute their content in a newspaper, via broadcast radio or television, or over

14 a cable system. See, e.g., Greater Los Angeles Agency on Deafness, Inc. v. Cable News

15 Network, Inc., 742 F.3d 414, 430-32 (9th Cir. 2014) (CNN is protected by the First

16 Amendment); Park v. Bd. of Trustees of Cal. State Univ., 2 Cal. 5th 1057, 1071, 393 P.3d 905,

17 914 (2017) (“The reporting of news, whether in print or on air, is constitutionally protected free

18 speech . . . .”); see also Leathers, 499 U.S. at 449 (finding “no evidence” that cable

19 programming “differs systematically in its message from that communicated by satellite

20 broadcast programming, newspapers, or magazines”); Brown v. Entm’t Merchants Ass’n, 564

21 U.S. 786, 790 (2011) (“‘[T]he basic principles of freedom of speech and the press, like the First

22 Amendment’s command, do not vary’ when a new and different medium for communication

23 appears.” (citation omitted)).1

24 1
Indeed, a distinction between broadcast news and cable news would be especially absurd.
25 Broadcast news itself is typically distributed over cable systems. See Denver Area Educ.
Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 734 (1996) (plurality opinion) (explaining

AMICI CURIAE BRIEF OF NCTA – THE INTERNET & CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
TELEVISION ASSOCIATION AND THE REPORTERS Seattle, Washington 98154-1051
COMMITTEE FOR FREEDOM OF THE PRESS – 3 Tel (206) 625-8600
Fax (206) 625-0900
 1 Plaintiff’s reliance on Denver Area Educational Telecommunications Consortium, Inc.

2 v. FCC is entirely misplaced. That case, in pertinent part, addressed a federal statutory mandate

3 that requires cable operators to lease channel capacity to third parties. A divided Court held

4 that a provision authorizing one group of private parties, cable operators, to refuse to carry

5 other private parties’ indecent programming on leased access channels does not violate the First

6 Amendment (while striking down two related provisions). 518 U.S. 727, 737-53 (1996)

7 (plurality opinion); id. at 819-31 (Thomas, J, concurring in the judgment in part and dissenting

8 in part). But that decision in no way authorizes governmental censorship of a cable

9 programmer’s speech. The Court by no means suggested, much less held, that news outlets

10 somehow shed their traditional First Amendment protections (i.e., protections from state action)

11 when they distribute their content over cable. To the contrary, the Court in Denver Area

12 reaffirmed the long-recognized “First Amendment interests of cable operators and other

13 programmers.” Id. at 743 (plurality opinion) (emphasis added); see also id. at 816 (Thomas, J,

14 concurring in the judgment in part and dissenting in part) (similarly recognizing “the First

15 Amendment rights of both cable operators and cable programmers” (emphasis added)).

16 In sum, “[t]here can be no disagreement” that cable news programmers—like any other

17 news distributors—“are entitled to the protection of the speech and press provisions of the First

18 Amendment.” Turner I, 512 U.S. at 636. As a cable news programmer, Fox News is entitled

19 to that protection in this case.

20
III. CONCLUSION
21
For these reasons, NCTA and the Reporters Committee respectfully urge the Court to
22
grant Defendants’ motion to dismiss on First Amendment grounds.
23

24
25 that cable “channels may simply retransmit through cable the signals of over-the-air broadcast
stations”).

AMICI CURIAE BRIEF OF NCTA – THE INTERNET & CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
TELEVISION ASSOCIATION AND THE REPORTERS Seattle, Washington 98154-1051
COMMITTEE FOR FREEDOM OF THE PRESS – 4 Tel (206) 625-8600
Fax (206) 625-0900
 1 DATED this 18th day of May, 2020.

2 LCR 7(b) Certification: I certify that this

memorandum contains 1,058 words, in
3
compliance with the Local Civil Rules.
4
CORR CRONIN LLP
5
s/ Steven W. Fogg
6 Steven W. Fogg, WSBA No. 23528
1001 Fourth Avenue, Suite 3900
7 Seattle, WA 98154-1051
8 (206) 625-8600 Phone
(206) 625-0900 Fax
9 sfogg@corrcronin.com

10 Attorneys for Amici Curiae NCTA – The Internet

& Television Association and the Reporters
11 Committee for Freedom of the Press
12
Matthew A. Brill (pro hac vice pending)
13 Matthew T. Murchison (pro hac vice pending)
Shannon Grammel (pro hac vice pending)
14 LATHAM & WATKINS LLP
555 11th Street, NW
15 Suite 1000
16 Washington, DC 20004
Tel: (202) 637-2200
17 Email: Matthew.Brill@lw.com
Matthew.Murchison@lw.com
18 Shannon.Grammel@lw.com
19 Attorneys for Amicus Curiae NCTA – The
20 Internet & Television Association

21

22

23

24
25

AMICI CURIAE BRIEF OF NCTA – THE INTERNET & CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
TELEVISION ASSOCIATION AND THE REPORTERS Seattle, Washington 98154-1051
COMMITTEE FOR FREEDOM OF THE PRESS – 5 Tel (206) 625-8600
Fax (206) 625-0900
 CERTIFICATE OF SERVICE
1
I, Donna Patterson, declare that I am employed by the law firm of Corr Cronin LLP, a
2
citizen of the United States of America, a resident of the state of Washington, over the age of
3
eighteen (18) years, not a party to the above-entitled action, and competent to be a witness
4
herein.
5

6 On May 18, 2020, I caused a true and correct copy of the foregoing document to be

7 served on the persons listed below in the manner indicated:

8 Catherine C. Clark, WSBA #21231  Via Hand Delivery

Law Office of Catherine Clark PLLC  Via First Class Mail
9 2200 6th Ave., Suite 1250  Via Facsimile
Seattle, WA 98121  Via Electronic Mail
10  Via King County Clerk E-
Phone: (206) 838- 2528
Service
11 Fax: (206) 374- 3003
Email: Cat@loccc.com
12
Attorney for Washington League For Increased
13 Transparency And Ethics
14 Tyler L. Farmer, WSBA #39912  Via Hand Delivery
Kristin E. Ballinger, WSBA #28253  Via First Class Mail
15 Harrigan Leyh Farmer & Thomsen LLP  Via Facsimile
999 Third Avenue, Suite 4400  Via Electronic Mail
16 Seattle, WA 98104  Via King County Clerk E-
Service
Tel: (206) 623-1700
17 Fax: (206) 623-8717
18 Email: tylerf@harriganleyh.com
Email: kristinb@harriganleyh.com
19
Attorneys for Fox Defendants
20 Christopher Lovrien (pro hac vice)  Via Hand Delivery
Jones Day  Via First Class Mail
21  Via Facsimile
555 South Flower Street, 50th Floor
Los Angeles, CA 90071  Via Electronic Mail
22  Via King County Clerk E-
Tel: (213) 243-2316
Service
23 Fax: (213) 243-2539
Email: cjlovrien@jonesday.com
24
25

AMICI CURIAE BRIEF OF NCTA – THE INTERNET & CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
TELEVISION ASSOCIATION AND THE REPORTERS Seattle, Washington 98154-1051
COMMITTEE FOR FREEDOM OF THE PRESS – 6 Tel (206) 625-8600
Fax (206) 625-0900
 Emily Faye Knox (pro hac vice)
1 Jones Day
2 555 California Street 26th Floor
San Francisco, California 94104
3 Tel: (415) 875-5815
Fax: (415) 875-5700
4 Email: egoldbergknox@jonesday.com
5
Michael A. Carvin (pro hac vice)
6 Anthony J. Dick (pro hac vice)
Jones Day
7 51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
8 Tel: (202) 879-3939
Fax: (202) 626-1700
9
Email: macarvin@jonesday.com
10 Email: ajdick@jonesday.com

11 Attorneys for Fox Defendants

12 I declare under penalty of perjury under the laws of the state of Washington that the
13 foregoing is true and correct.
14 DATED at Seattle, Washington on May 18, 2020.
15

16 /s/ Donna Patterson

Donna Patterson
17

18

19

20

21

22

23

24
25

AMICI CURIAE BRIEF OF NCTA – THE INTERNET & CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
TELEVISION ASSOCIATION AND THE REPORTERS Seattle, Washington 98154-1051
COMMITTEE FOR FREEDOM OF THE PRESS – 7 Tel (206) 625-8600
Fax (206) 625-0900