Ten Injured Workers v. State

553 P.3d 726

TEN INJURED WORKERS, Respondents,

v.The STATE of Washington; Joel Sacks, in his official capacity as Director for the Department of Labor and Industries; and Robert W. Ferguson, in his official capacity as Attorney General for the State of Washington, Appellants.

No. 85997-8-1

Court of Appeals of Washington, Division 1.

Filed August 12, 2024

Honorable Joe Campagna, Judge.

Anastasia R. Sandstrom, Attorney General’s Office, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, William Henry, Attorney at Law, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, Kaitlin Loomis, Office of the Attorney General, 800 Fifth Ave. Ste. 2000 Seattle, WA, 98104-3188, Seattle Labor & Industries A.g. Office, Attorney at Law, 800 Fifth Ave., Suite 2000, Ms-tb-14, Seattle, WA, 98104-3188 for Appellant and Defendant.

Spencer Dion Parr, Washington Law Center, PLLC, 651 Strander Blvd. Bldg. B, Tukwila, WA, 98188-2943, Scott Frederick Goodrich, Washington Law Center, 651

Strander Blvd. Ste. 215, Tukwila, WA, 98188-2953 for Respondents.

PUBLISHED OPINION

Smith, C.J.

[1] ¶1 "A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more." Packingham v. North Carolina, 582 U.S. 98, 104, 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017). That fundamental principle is central to this case.

¶2 In 2023, the legislature amended RCW 51.36.070 to allow injured workers to audio and video record their independent medical examinations (IMEs). However, subsection (4)(g) of the statute forbids workers from posting a recorded IME to social media. Ten injured workers sued the State of Washington, the director of the Department of Labor and Industries, and the state attorney general ¹ under the Uniform Declaratory Judgments Act, ch. 7.24 RCW, challenging the constitutionality of the subsection and arguing that it is a prior restraint on speech. The trial court, agreed and granted summary judgment in the workers’ favor. The State appealed, contending that the restriction is a permissible time, place, or manner restriction. Because the statute forecloses workers’ access to social media, we conclude that the statute is an unconstitutional prior restraint and affirm.

FACTS

¶3 Under the Industrial Insurance Act, Title 51 RCW, workers who sustain injuries in the course of their employment are entitled to compensation. RCW 51.32.010. To evaluate whether a worker is entitled to compensation, the Department of Labor and Industries (the Department) requires workers to first submit to an IME. RCW 51.36.070. An IME is "[a]n objective medical-legal examination requested (by the department or self-insurer) to establish medical findings, opinions, and conclusions about a worker’s physical condition." WAC 296-23-302. These examinations "may only be conducted by department-approved examiners." WAC 296-23-302.

¶4 In 2023, the legislature amended the statute governing IMEs to allow workers to record their examinations, subject to certain limitations. Laws of 2023, ch. 166, § 4. Relevant here, the newly amended statute prohibits workers from posting the recorded examination to social media. RCW 51.36.070(4)(g). Workers can be fined up to $1,000 for posting a recording to social media. RCW 51.48.080.

¶5 Shortly after the newly amended statute took effect, ten injured workers (the Workers) sued the State of Washington, the Director for the Department of Labor, and the state attorney general to enjoin application of the statute under the Uniform Declaratory Judgments Act. In response, the State moved for summary judgment, arguing that the statute regulated conduct and, therefore, that free speech principles did not apply. In the alternative, the State asserted that the social media provision was a permissible time, place, and manner restriction. The trial court disagreed, concluded that the social media provision was an unconstitutional prior restraint on speech, and denied the State’s motion for summary judgment. The court also permanently enjoined the State from enforcing RCW 51.36.070(4)(g) against injured workers who post recordings of their IMEs to social media and stayed the permanent injunction pending review by our state Supreme Court.

¶6 The State appeals.

ANALYSIS

¶7 Whether RCW 51.36.070(4)(g)’s prohibition on posting a recorded IME to social media is an unconstitutional restraint on speech presents a matter of first impression. The State contends that the prohibition is a valid time, place, and manner restriction because the Internet is a "place," the statute is narrowly tailored to achieve a compelling state interest, and because workers are free to discuss or share their recorded IMEs elsewhere. The Workers contend that the statute is an unconstitutional prior restraint because it forecloses a worker’s access to social media altogether.

¶8 But these arguments fail to address a necessary threshold inquiry: whether posting a recorded IME to social media is conduct or speech for First Amendment purposes. In order to reach what kind of restriction RCW 51.36.070(4)(g) prescribes, we must first determine whether the statute implicates free speech principles at all. We conclude that it does.

Standard of Review

[2, 3] ¶9 We review a summary judgment order de novo. Borton & Sons, Inc. v. Burbank Props., LLC, 196 Wash.2d 199, 205, 471 P.3d 871 (2020). When reviewing an order granting summary judgment, we engage in the same inquiry as the trial court and consider all the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wash.2d 358, 370, 357 P.3d 1080 (2015).

[4–6] ¶10 We also review the constitutionality of a statute de novo. State v. Watson, 160 Wash.2d 1, 5, 154 P.3d 909 (2007). " ‘[A] statute is presumed to be constitutional, and the party challenging its constitutionality bears the burden of proving its unconstitutionality beyond a reasonable doubt.’" Voters Educ. Comm. v. Wash. Pub. Disclosure Comm’n, 161 Wash.2d 470, 481, 166 P.3d 1174 (2007) (quoting State v. Hughes, 154 Wash.2d 118, 132, 110 P.3d 192 (2005)). But in the context of free speech, the burden shifts and "[t]he State bears the burden of justifying a restriction on speech." Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 114, 937 P.2d 154 (1997).

Whether RCW 51.36.070(4)(g) Implicates Free Speech

¶11 The right to free speech is protected by both our state constitution and the federal constitution. Wash. Const, art. I, § 5; U.S. Const, amend. I. Article I, section 5 of our state constitution provides that "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." Likewise, the First Amendment, which applies to the states through the due process clause of the Fourteenth Amendment, provides that "Congress shall make no law … abridging the freedom of speech." U.S. Const, amend. 1.

[7] ¶12 Although both article I, section 5 of our state constitution and the First Amendment to the federal constitution forbid restrictions on speech, courts have long recognized that such protections "do[ ] not end at the spoken or written word." See Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989) (explaining that the First Amendment may protect expressive conduct); State v. Immelt, 173 Wash.2d 1, 6-7, 267 P.3d 305 (2011) (noting that conduct may be constitutionally protected). Conduct may be protected speech if it is " ‘sufficiently imbued with elements of communication.’ " First Covenant Church of Seattle v. City of Seattle, 120 Wash.2d 203, 216, 840 P.2d 174 (1992) (quoting Spence v. Washington, 418 U.S. 405, 409, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974)). But pure conduct is not protected. O’Day v. King County, 109 Wash.2d 796, 802, 749 P.2d 142 (1988). Further, the United States Supreme Court has rejected the notion that any conduct may qualify as speech if the actor intends to express or communicate an idea. United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968).

[8] ¶13 To determine whether conduct constitutes protected speech, we examine whether (1) the person intended "to convey a particularized message," and (2) whether "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Spence, 418 U.S. at 410-11, 94 S.Ct. 2727. At the heart of this inquiry is whether the conduct is "inherently expressive." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006) (FAIR).

[9] ¶14 Here, the forum being restricted—social media platforms—informs our analysis. As the United States Supreme Court recently noted, one of the most important places for the exchange of views in our modern society is "cyberspace—the "vast democratic forums of the Internet’ in gener- al, and social media in particular." Packingham, 582 U.S. at 104, 137 S.Ct. 1730 (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)). "Social media offers ‘relatively unlimited, low-cost capacity for communications of all kinds’ " and allows users to "engage in a wide array of protected First Amendment activity on topics ‘as diverse as human thought.’" Packingham, 582 U.S. at 104-05, 137 S.Ct. 1730 (quoting Reno, 521 U.S. at 870, 117 S.Ct. 2329) (internal quotation marks omitted).

[10] ¶15 It is well-established that online posts may constitute speech or expressive conduct. See, e.g., Reno, 521 U.S. at 870, 117 S.Ct. 2329 (First Amendment applies to publication of information on the Internet); Johnson v. Ryan, 186 Wash. App. 562, 580-81, 346 P.3d 789 (2015) (former employee’s internet blog posts about dispute with employer were speech); Thomson v. Doe, 189 Wash. App. 45, 58, 356 P.3d 727 (2015) (anonymous poster’s review on online lawyer review website was speech); State v. Kohonen, 192 Wash. App....