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)
ARTHUR WEST, )
plaintiff ) No. 08-2-04312-1
)
vs. ) PLAINTIFF’S NOTICE
) AND MEMORANDUM
) ON THE DOCTRINE OF
PORT OF TACOMA, ) UNCONSTITUTIONAL
defendant ) PRIOR RESTRAINT
)
___________________________________ )________________________________________
Comes now the plaintiff, Arthur West, and provides notice to the Washington State
Attorney General, the Pierce County Superior Court and the defendant, the Port of Tacoma, that
the application of Washington State Law RCW 42.56 in this case constitutes an overbroad,
unconstitutional, and procedurally protracted prior restraint upon publication by the media of
information concerning the operation of government, as well as the rights of the citizenry to
informed petition and expression.
No one would reasonably dispute that access to a supply of ammunition is a necessary
prerequisite for the exercise of the 2nd Amendment right to bear arms, and it is equally
unreasonable to maintain that the exercise of 1st Amendment rights of publication, expression,
and petition do not similarly require reasonable access to the information that the Washington
State Statute, RCW 42.56, refers to as “a fundamental prerequisite to the sound governance of a
free society”. As such, the present application of RCW 42.56 to the records in this case barring
meaningful and timely access to records concerning the conduct of government, for the express
This is an action to secure records concerning the conduct (and admitted misconduct) of
public officials of the Ports of Tacoma, and Olympia, Washington. Despite the requirement that
exemptions to disclosure be narrowly construed, the Trial Courts in the State of Washington
routinely allow broad use of exemptions, which may, as in the case of both the Koenig and
Yousoufian cases, require over a decade to resolve. Counsel for the port acknowledges the
unconstitutionally overbroad nature of the exemptions in RCW 42.56 when they refer to the
“interplay” and “overlap” of the statutory exemptions and assert multiple exemptions for each
record. While a restraint upon expression must be narrowly tailored to achieve its legitimate
goals, the “overlap and interplay” and assertion of multiple exemptions is not narrowly tailored
to any legitimate goal, and has the onerous side effect of unduly protracting proceeding in a
manner at variance with procedural protections required for any abridgement of First
Amendment liberties.
Such a proliferation of overbroadly asserted exemptions, procedural morass, and
attendant unreasonable delays upon disclosure of the information necessary to “the sound
governance of a free society”, even under the best of circumstances, would pose serious
constitutional issues. It is an additional aggravating factor that the circumstances in this case are,
unfortunately, not the best.
Despite the exemptions and records in this case having been submitted to the Pierce
County Superior Court for review months ago, the honorable Judge Fleming has declined to
review the records or proceed with this case in any reasonably prompt manner in accord with the
fundamental liberties protected in our most sacred political manuscripts and WSCA IV & 20.
Worse still, it now appears that in addition to unreasonable delays, the Court has
determined to require an additional unlawful “license”, imprimatur and prior restraint upon
plaintiff’s rights to petition and expression, in the form of an onerous and unlawful “fee” for the
review of the multiple exemptions asserted by the port by a private Special Master under a civil
rule pertaining to private records and disputes. This procedure is not even as swift and certain as
that employed in Koenig or Yousoufian (which both took over a decade), nor is it open and
The excerpts from the exemption logs filed by the Port in this case demonstrate
incontrovertibly that the intent of the port in asserting “privilege” (AKA exemption) under RCW
42.56 is to effect an unlawful prior restraint on political expression and publication.
The undeniable circumstance is that the port’s claims of “privilege” seek to restrain
publication and undermine the people’s inherent political power and sovereignty. This is
demonstrated beyond dispute by the express wording of the “privileges” (AKA exemptions)
asserted by the port. In the port’s inverted “Alice in Wonderland” view of the law, it is the State
that has privileges, not the citizenry, and they may be invoked to restrain distortion by the media
and “politicization and media comments”. Thus, from the port’s “privilege” exemption logs, a
sampling of a small minority of the most egregious explanations for withholding of records
under RCW 42.56…
“If the lists were disclosed, public scrutiny of the issues, which would be taken
out of context and distorted by the media, would impede deliberations” (See
Port exemption log 23, P.1)
If the draft statement were disclosed, public scrutiny of the issues could be
taken out of context and distorted by the media, or could impede deliberations.
(See Port exemption log 24 at P. 2)
“If the lists were disclosed, public scrutiny of the issues, which would be taken
out of context and distorted by the media, would impede deliberations” …
“politicization and media comments will by definition inhibit the delicate
balance…” (See Port exemption log 24 at P. 3-4)
“If the lists were disclosed, public scrutiny of the issues, which would be taken
out of context and distorted by the media, would impede deliberations”…
“politicization and media comments will by definition inhibit the delicate
balance…”(See Port exemption log 24 at P. 3-4)
“If the lists were disclosed, public scrutiny of the issues, which would be taken
out of context and distorted by the media, would impede deliberations”…
“If the lists were disclosed, public scrutiny of the issues, which would be taken
out of context and distorted by the media, would impede deliberations.”
…“politicization and media comments will by definition inhibit the delicate
balance…”(See Port exemption log 24 at P. 8)
Similar statements appear on nearly every subsequent page of the nineteen (19) page
exemption log. (Page 16 is the sole exception)
Although an exhaustive survey of each and every specific prior restraint upon publication sought
by the Port in this case is impossible in the scope of a this memorandum, logs 29 and 34, for
example echo this mantra, again upon virtually every page of their Twenty Four (24) and Twenty
Eight (28) page lengths, respectively. (further citations omitted)
Significantly, both Port Counsel and Port Executive John Wolfe echo this obscurest
mantra that the Public Records Act may properly be employed to enjoin legitimate public
scrutiny and media publication of information concerning the operations of government, even
long after the decisions about the SSLC have been made. This is an abuse of the deliberative
process exemption and a classic example of an insidious and underhanded assault on the rights of
expression and petition for redress.
Public scrutiny of the preliminary issues, may be taken out of context and
distorted by the media, would impede deliberations. Wolfe declaration of May
21, 2008.
If the lists were disclosed, public scrutiny of the issues, which would be taken
out of context and distorted by the media, would impede deliberations. See
Declaration of John Wolfe. (Port Counsel Brief of May 21, page 16, lines 14-17)
As will be shown below, the central intent of the application of RCW 42.56 in this case is
a prior restraint upon media publication and the accompanying public scrutiny-in the manner of a
classic prior restraint. The expressed intent of the port in this case is not merely to “chill”
exercise of fundamental liberties, but to “freeze” them in their tracks for so long that they are, for
all intensive purposes, foreclosed. This undermines public scrutiny and oversight of government
essential to the exercise of the sovereignty of the people.
Article I, Section 1 of the Constitution of the State of Washington states in no uncertain
terms that…All political power is inherent in the people, and governments derive their just
powers from the consent of the governed, and are established to protect and maintain
individual rights.
It is beyond reasonable dispute that the “consent” referred to by the framers of this
document was an informed consent. Similarly, the provisions of Article 4 and 5 regarding
petition, assembly, publication and speech, contain implicitly within their bounds the access to
the information necessary to the informed exercise of these rights. The public right to
information on the conduct of government is as old and venerable as the Roman Forum itself or
the Moots of the Icelandic sagas, which were also conducted in an open forum. As a natural right
the right to information must also be considered reserved to the people under the “Great
Residium” of Articles IX and X of our Federal Constitution, the Supreme law of the land binding
upon the States through the XIV Amendment. (See also USCA 1)
As shown above, the central intent of the port’s application of RCW 42.56 in this case is
an indefinite prior restraint upon media publication and the accompanying public scrutiny. While
this may not precisely fit the exact definition of a “classic” prior restraint, it is a prior restraint
nonetheless, and just as offensive to the fundamental tenets of representative democracy and the
sound administration of a free society.
There is no dispute that the 1st Amendment protects the right to receive information
concerning the conduct of government as a central prerequisite to the exercise of all other rights.
As the Supreme Court held in Fritz v. Gorton 83 Wn.2d 275, 517 P.2d 911 (1974), We accept as
self-evident the suggestion in the brief of intervenors (The League of Women Voters) that the
right to receive information is the fundamental counterpart of the right of free speech.
As such, any order or system which, by judicial action or requirement for imprimitur,
abridges the right to receive information may properly be subject to traditional prior restraint
analysis.
"Freedoms of speech, press, and religion are entitled to a preferred constitutional position
because they are `of the very essence of a scheme of ordered liberty.' They are essential not only
to the persons or groups directly concerned but to the entire community. Our whole political and
social system depends upon them. Any interference with them is not only an abuse but an
obstacle to the correction of other abuses. Because they are essential, the guarantees of free
speech, press, and religion in the First Amendment, though not all constitutional guarantees, are
within the `liberty' which is protected by the due process clause of the Fourteenth Amendment.
While the most obvious form of prior restraint is a judicial injunction or "gag order"
against the dissemination of particular information the media has obtained, there is no basis to
restrict its application to disclosed information, particularly in the case where the information has
already been “disclosed” to the court and relies for its concealment upon a judicial imprimatur.
Thus, A court injunction prohibiting Business Week magazine from publishing documents which
the court had placed under seal in a case involving Procter & Gamble's investment in derivatives
was held to be an unconstitutional prior restraint, in Procter & Gamble Co. v. Bankers Trust Co.,
78 F.3d 219 (6thCir. 1996). The court stated that prohibiting the publication of a news story is
"the essence of censorship." Any burden placed on communication prior to its dissemination is
arguably prior restraint, regardless of the form that burden takes. A special use tax on paper and
ink products used in newspaper production was held to violate the First Amendment.
Minneapolis Star & Tribune Co. v. Minnesota Commr. Of Revenue, 460 U.S. 575 (1983). An
Illinois statute requiring a licensee to advertise in certain law enforcement publications was held
unconstitutional as a prior restraint. Hornstein v. Hartigan, 676 F.Supp. 894 (C.D. Ill. 1988).
Ordinances banning news racks in residential areas have been declared unconstitutional as prior
restraints. Chicago Newspaper Publishers Assn. v. City of Wheaton, 697 F.Supp. 1464 (N.D. Ill.
1988). A federal regulation requiring a government permit prior to protesting in a national park
was declared an invalid prior restraint in U.S. v. Frandsen, 212 F.3d 1231 (11th Cir. 2000). An
Illinois statute making it a crime to interfere with a hunter legally taking a wild animal (the
Illinois Hunter Interference Prohibition Act) was found to be unconstitutional as a prior restraint
in People v. Sanders, 182 Ill.2d 524 (1998). Under this broad view, the provisions of RCW 42.56,
as applied by the Port and the Pierce County Superior Court constitute a system of prior
restraints upon receipt of information, and accompanying rights to expression and petition for
redress. Clearly, if government could always operate in secrecy, there would be no opportunity
for the core activities of expression and petition concerning the conduct of government. Such
indirect assaults on the First Amendment are more dangerous and insidious than an honorable
PLAINTIFF’S MEMO ARTHUR WEST
120 STATE AVE NE
ON PRIOR RESTRAINTS OLYMPIA,
WASHINGTON, 98501
frontal assault, and must yield to an as applied challenge. As applied by the Port and Judge
Fleming, the Washington State Statute RCW 42.56 unreasonably restricts publication of
identifiable and specific information under Court seal, and further abridges the citizens’ rights to
receive information on the conduct of their government. Any procedure or law by which the
government is enabled to keep from the public the information necessary for preservation of the
sound governance of a free society (and necessary for the exercise of the petitioner’s rights to
expression and petition), for which procedural safeguards such as accelerated review are
unavailable, is unconstitutional. The Washington State Constitution requires that the Federal
Constitution be “the supreme law of the land”. The XIV Amendment also requires the States to
observe the 1stAmendment and Due Process. The actions of the Port and the Pierce County
Court abridge the expression, petition, and substantive and procedural due process rights of
plaintiff West and the citizens of this State. Such actions are just as unlawful and illegal as any
“classic” type of unlawful prior restraint, and in the end, more certain of the destruction of our
democratic institutions.
The sweep of the first amendment to the Federal constitution precludes the state from
enacting any law abridging the freedom of speech or press. In Bridges v. California, 314 U. S.
252, 263, 86 L. Ed. 192, 62 S. Ct. 190, 159 A. L. R. 1346, the United States Supreme Court
declared:
"For the First Amendment does not speak equivocally. It prohibits any law `abridging the
freedom of speech, or of the press.' It must be taken as a command of the broadest scope that
explicit language, read in the context of a liberty-loving society, will allow." Consequently, there
is no presumption of constitutionality of statutes abridging those rights. Near v. Minnesota, 283
U. S. 697, 75 L. Ed. 1357, 51 S. Ct. 625.
There is thus a heavy presumption that any prior restraint on publication of information
or ideas such as that posed by the application of RCW 42.56 in this case by the port is
It is well to remember that, although classic prior restraint doctrine focuses particularly
upon the impacts upon the Fourth Estate, the media is protected by the First Amendment, not
because of any special status accorded the news media, but because in seeking out news and
reporting it, the media act as an agent of the public to preserve the integrity of governmental
process. The Supreme Court has held that "[the] First Amendment generally grants the press no
right to information …superior to that of the general public." Nixon v. Warner Communications,
Just as it is self evident that the right to obtain ammunition is a necessary corollary of the
2nd Amendment right to Bear Arms, so too it is “self evident” that the right to receive information
is a necessary corollary to the exercise of 1st Amendment the right to Freedom of Speech. See
Fritz v. Gorton, 83Wn.2d 275, 517 P.2d 911 (1974) In NAACP v. Buttons, the Federal Supreme
Court enunciated two basic principles…The first is that a state cannot foreclose the exercise of
Constitutional rights by mere labels…The second is that abstract discussion is not the only
species of communication which the Constitution protects; the First Amendment also protects
vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas v. Collins,
323 U. S. 516, 323 U. S. 537; Herndon v. Lowry, 301 U.S. 242, 301 U. S. 259-264. Cf. Cantwell
v. Connecticut, 310 U. S. 296; Stromberg v. California, 283 U. S. 359, 283 U. S. 369; Terminello
v. Chicago, 337 U. S. 1, 337 U. S. 4.
The Supreme Court recognized that in certain contexts, litigation is not a technique of
resolving private differences; it is a means for achieving lawful objectives. It is thus a form of
political expression. Groups which find themselves unable to achieve their objectives through the