concurring:
I fully concur in Judge Ferguson’s opinion because I agree that the Washington statute at issue here does not pass constitutional muster under public forum analysis. The statute directly encroaches upon fundamental political speech in a traditional public forum and the proffered state interests do not provide constitutionally sufficient justification for the limitation. I write separately, however, to emphasize the fact that the Washington statute restricts the media’s right of access to information crucial to the political process and, for that reason, also violates the principles embodied in the first amendment.
The public forum approach takes street comer discussions as its paradigm and defines the obligation of the state negatively. The state must simply abstain from interfering with the freedom of individuals to engage in public speech acts in public fora. This approach, thus, focuses on the right of individuals to expressive autonomy under the first amendment. See generally, Fiss, Why the State? 100 Harv.L.Rev. 781, 785-86 (1987); Fiss, Free Speech and Social Structure, 71 Iowa L.Rev. 1405, 1408-10 (1986).
The public forum approach enables Judge Ferguson, in his opinion for the court, to deal adequately with one aspect of this case, i.e., the right of the voters and of the representatives of the media to engage voluntarily in discussion about the candidates and the election. The second dimension of this case — the right of the media and, more important, the right of society to gather and disseminate information important to the democratic political process — requires a broader approach to the first amendment. Under such an approach, the state does not simply have a duty not to interfere with the expressive autonomy of individuals in the hope that a healthy public debate will take place on its own. The state has an affirmative obligation to preserve the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open____” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).
This approach posits public debate, not expressive autonomy, as the paramount principle underlying the first amendment.
The purpose of the first amendment remains what is was under autonomy — to protect the ability of people, as a collectivity, to decide their own fate. Rich public debate also continues to appear as an essential precondition for the exercise of that sovereign prerogative. But now action is judged by its impact on public debate, a social state of affairs, rather than by whether it constrains or otherwise interferes with the autonomy of some individual or institution. The concern is not with the frustration of would-be speakers, but with the quality of public discourse.
Fiss, Why the State?, supra, at 786.
In addition, this reading focuses not only on the rights of individuals but also on the broader rights of society as a whole and thus is consistent with the Supreme Court’s mandate that the first amendment “be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.” Bridges v. California 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192 (1941). “The Constitution,” the Court has declared, “often protects interests broader than those of *390the party seeking their vindication. The First Amendment, in particular, serves significant societal interest.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 1415, 55 L.Ed.2d 707 (1978). Oftentimes individual and societal interests point to the same result in first amendment cases but we must not in our analysis overlook the differences between the two. The Supreme Court has embraced this conclusion: “The individual’s interest in self-expression is a concern of the First Amendment separate from the concern for open and informed discussion, although the two often converge.” Id. at 777 n. 12, 98 S.Ct. at 1416 n. 12.
By enacting section 29.51.020, the state of Washington has violated not only the individual constitutional rights of the media and the voters but also its obligation to provide for the rich public debate that the first amendment requires. The state has an affirmative duty to protect the media’s right of access to information crucial to the societal process of political deliberation. As the Supreme Court explained in Mills v. Alabama,
Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussion of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.
384 U.S. 214, 218-19, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S.Ct. 2814, 2826, 65 L.Ed.2d 973 (1980) (plurality) (The provisions of the first amendment “share a common core purpose of assuring freedom of communication on matters relating to the functioning of government.”). Public debate on these governmental issues would be meaningless if the media were not allowed to obtain the information, including information of the type yielded by exit polls, on which such debate turns. For valuable public debate — as well as other civic behavior — must be informed.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 587, 100 S.Ct. at 2833 (Brennan, J., concurring in the judgment) (footnote omitted). Cf. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972) (“[Wjithout some protection for seeking out the news, freedom of the press could be eviscerated.”).
In sum, I believe that, in conducting exit polls, the press makes a legitimate contribution to the quality of public debate. Exit polls, as Judge Ferguson explains, provide information not only on the outcome of the election but also on why people voted the way they did. Maj. op. at 387-88. See also Daily Herald Co. v. Munro, 758 F.2d 350, 357-58 (9th Cir.1984) (Norris, J., concurring in part and dissenting in part). By unduly restricting such information-gathering activity the state of Washington restricts the debate on public issues rather than ensuring that it remains “uninhibited, robust, and wide-open” as the Constitution requires. For this reason, as well as those primarily relied on by Judge Ferguson, the first amendment requires that we strike down the statute at issue here.