IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TEN INJURED WORKERS, No. 85997-8-I
Respondents, DIVISION ONE v.
THE STATE OF WASHINGTON; JOEL PUBLISHED OPINION 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.
SMITH, C.J. — “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 principal
is central to this case.
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
general1 under the Uniform Declaratory Judgments Act, ch. 7.24 RCW,
1 These parties are collectively referred to as “the State” on appeal. No. 85997-8-I/2
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
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.
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.
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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.
The State appeals.
ANALYSIS
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.
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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
We review a summary judgment order de novo. Borton & Sons, Inc. v.
Burbank Props., LLC, 196 Wn.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 Wn.2d 358, 370, 357 P.3d 1080 (2015).
We also review the constitutionality of a statute de novo. State v. Watson,
160 Wn.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 Wn.2d 470, 481, 166 P.3d 1174
(2007) (quoting State v. Hughes, 154 Wn.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
Wn.2d 103, 114, 937 P.2d 154 (1997).
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Whether RCW 51.36.070(4)(g) Implicates Free Speech
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.
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 Wn.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 Wn.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
Wn.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).
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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. 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).
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 general, and social
media in particular.” Packingham, 582 U.S. at 104 (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 (quoting Reno, 521 U.S. at 870) (internal quotation marks
omitted).
It is well-established that online posts may constitute speech or expressive
conduct. See, e.g., Reno, 521 U.S. at 870 (First Amendment applies to
publication of information on the Internet); Johnson v. Ryan, 186 Wn. 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 Wn. App. 45, 58, 356
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P.3d 727 (2015) (anonymous poster’s review on online lawyer review website
was speech); State v. Kohonen, 192 Wn. App. 567, 580, 370 P.3d 16 (2016)
(student’s posts on the Twitter platform were speech); see also Bland v. Roberts,
730 F.3d 368, 386 (4th Cir. 2013) (liking a page on Facebook communicates
approval and implicates First Amendment protections). Thus, posts on social
media expressing varying views and opinions can be protected forms of speech.
But determining whether an online post is speech or conduct presents a complex
question, dependent on the context, content, and, at times, the speaker at issue.
In the present case, the context and speakers at issue weigh heavily in
favor of categorizing the act of posting a recorded IME to social media as
expressive conduct. The Internet, and social media in particular, is the “modern
public square,” and is, for many, “the principal source[] for knowing current
events, checking ads for employment, speaking and listening, . . . and otherwise
exploring the vast realms of human thought and knowledge.” Packingham, 582
U.S. at 99. Social media sites provide “perhaps the most powerful mechanisms
available to a private citizen to make his or her voice heard.” Packingham, 582
U.S. at 107. Commenting on, reposting, or liking a user’s post can communicate
either an approval or disagreement with the original user’s posting. See, e.g.,
Bland, 730 F.3d at 386 (liking a Facebook page communicates approval). As the
Supreme Court noted in Packingham, “[f]oreclosing access to social media
altogether thus prevents users from engaging in the legitimate exercise of First
Amendment rights.” 582 U.S. at 99. Because the purpose of social media is to
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connect with others and to share thoughts and opinions, it follows that, in
general, users post on social media with the intent to communicate.
Further, given the nature of a worker’s compensation claim, the context of
why a worker may choose to record or post an IME to social media also supports
a conclusion that such a post is expressive conduct. The legislature passed
RCW 51.36.070 with the goal of protecting injured workers during an innately
adversarial process. When the legislature considered Substitute House Bill
1068, public testimony in favor of the bill highlighted the need for transparency
during IMEs. See, e.g., SUBSTITUTE H.B. REP. ON H.B. 1068, 68th Leg., Reg.
Sess. (Wash. 2023); SUBSTITUTE S.B. REP. ON H.B. 1068, 68th Leg., Reg. Sess.
(Wash. 2023). Allowing workers to record their IMEs neutralizes the power
imbalance between injured workers and doctors, provides workers with a
mechanism of disputing diagnoses or care they may not agree with, and
incentivizes providers to offer quality care. See SUBSTITUTE S.B. REP. ON H.B.
1068, 68th Leg., Reg. Sess. (Wash. 2023). It stands to reason that workers who
choose to share their recorded IME with others, in the midst of an adversarial
process, do so with the obvious intent of communicating either displeasure or
agreement with the treatment they received.
It is clear that the act of posting a recorded IME to social media is
expressive conduct warranting free speech protections. By posting an IME to
social media, injured workers intend to convey a particularized message about
their worker’s compensation claim or about the IME provider. Given that the
videos would be posted to social media, a platform for sharing ideas and
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communicating with others, the likelihood that the worker’s message is
understood by those who view the video is especially great.
Although the parties do not address on appeal whether posting an IME to
social media is expressive conduct, the State did address this question before
the trial court in its motion for summary judgment. There, the State argued that
“[p]osting a recorded medical examination online is an action of uploading a
recording online through computer commands,” and therefore, conduct and not
speech. But this analysis misses the mark and ignores case law expressly
concluding that social media posts—which, by their very nature, are all acts of
uploading something through computer commands—can be expressive conduct
or speech. See, e.g., Kohonen, 192 Wn. App. at 580 (student’s posts on Twitter
were speech).
The State also relied heavily on FAIR before the trial court to support its
contention that posting a recorded IME to social media is not speech. In FAIR, a
group of law schools and faculty members challenged the constitutionality of a
law that required higher education institutions to provide military recruiters on
campus with access to students and facilities equal to that of nonmilitary
recruiters. 547 U.S. at 52, 55. The United States Supreme Court noted that the
act of denying military recruiters the same access to students was not “inherently
expressive,” and therefore, did not violate the First Amendment. FAIR, 547 U.S.
at 66. The Court explained that additional speech would be necessary for an
outside observer to understand that the school’s reasoning for denying military
recruiters’ favorable access was to protest the military’s “Don’t Ask, Don’t Tell”
9 No. 85997-8-I/10
policy. FAIR, 547 U.S. at 66. The Court noted that “if combining speech and
conduct were enough to create expressive conduct, a regulated party could
always transform conduct into ‘speech’ by simply talking about it.” FAIR, 547
U.S. at 66.
But FAIR is distinguishable from the present case. Here, the forum
involved—social media—is inherently expressive. The context and conduct at
issue here are also more specific. Against the backdrop of a worker’s
compensation claim, an inherently adversarial procedure, it logically follows that
workers would choose to post a recorded IME to express an opinion regarding
their medical treatment. Such a posting is expressive conduct.
Whether RCW 51.36.070(4)(g) Is a Prior Restraint
We must next determine whether RCW 51.36.070(4)(g) is a time, place,
and manner restriction or a prior restraint. The Workers assert that the
subsection is a prior restraint because it forecloses access to social media
altogether. We agree.
“A prior restraint is an administrative or judicial order forbidding
communications prior to their occurrence.” Soundgarden v. Eikenberry, 123
Wn.2d 750, 764, 871 P.2d 1050 (1994). Prior restraints seek to prohibit future
speech, as opposed to punishing past speech. Voters Educ. Comm., 161 Wn.2d
at 494. “[U]nlike the First Amendment, article I, section 5 categorically prohibits
prior restraints on constitutionally protected speech.” Bradburn v. N. Cent. Reg’l
Library Dist., 168 Wn.2d 789, 801, 231 P.3d 166 (2010). “ ‘Temporary
restraining orders and permanent injunctions—i.e., court orders that actually
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forbid speech activities—are classic examples of prior restraints.’ ” In re
Marriage of Suggs, 152 Wn.2d 74, 81, 93 P.3d 161 (2004) (quoting Alexander v.
United States, 509 U.S. 544, 550, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993)).
Statutes that prohibit speech or expression may also be unconstitutional prior
restraints. See, e.g., Soundgarden, 123 Wn.2d at 778 (determining that statute
banning erotic sound recordings was a prior restraint).
But not every regulation on speech is a prior restraint. “[A] regulation may
not rise to the level of a prior restraint if it is merely a valid time, place or manner
restriction on the exercise of protected speech.” State v. Coe, 101 Wn.2d 364,
373, 679 P.2d 353 (1984). Because subsection (4)(g) contains no temporal
limits, and because “social media” is far too broad a concept to constitute a
geographic limit, the subsection cannot be characterized as a time or place
restriction. We are also unconvinced that the subsection is a valid “manner”
restriction; it forecloses virtually all access to sharing a recorded IME.
The subsection at issue in this case is more properly characterized as a
prior restraint. Soundgarden is instructive here. The statute at issue in
Soundgarden, the 1992 “Erotic Sound Recordings” statute,2 required an “adults
only” notice on any recorded material deemed “erotic” by a superior court.
Soundgarden, 123 Wn.2d at 760. The statute also prohibited all dealers and
distributors from “ ‘displaying erotic publications or sound recordings in their store
windows, on outside newsstands on public thoroughfares, or in any other manner
so as to make an erotic publication or the contents of an erotic sound recording
2 Former RCW 9.68.060 (1992), repealed by LAWS OF 2024, ch. 232, § 6.
11 No. 85997-8-I/12
readily accessible to minors.’ ” Soundgarden, 123 Wn.2d at 760 (emphasis
omitted) (quoting former RCW 9.68.060 (2004)). The statute provided for civil
contempt and criminal penalties for anyone who sold, distributed, or exhibited
material to a minor after a court had determined the material to be erotic.
Soundgarden, 123 Wn.2d at 761. Our Supreme Court held that the statute
constituted a prior restraint on protected speech as applied to adults because, by
requiring the “adults only” label, the statute denied recording artists and
merchants their right to and not to speak. Soundgarden, 123 Wn.2d at 766, 778.
The statute at issue here, RCW 51.36.070(4)(g), is akin to the statute at
issue in Soundgarden. The subsection states: “The worker may not post the
recording to social media.” RCW 51.36.070(4)(g). And under RCW 51.48.080,
failure to comply with the statute results in a penalty of up to $1,000. Much like
the statute at issue in Soundgarden, subsection (4)(g) forecloses any opportunity
for injured workers to share their recorded IMEs to social media. This blanket
prohibition is a hallmark of a prior restraint. We conclude that the statute is an
impermissible prior restraint on speech and affirm the decision of the trial court.
Affirmed.
WE CONCUR: