A New Shield Law in Washington State

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On April 28th, Governor Chris Gregoire of Washington State signed a media shield bill into law, making Washington the thirty-second state with a statutory protection for journalists’ confidential sources and the thirteenth state in which a journalist cannot be forced to reveal his confidential source’s identity under any circumstances . In addition, the Washington law protects journalicsts from having to reveal any information obtained during newsgathering activities. Bree Nordenson discussed the legislation with the primary author of the bill, veteran media attorney Bruce Johnson of Davis Wright Tremaine in Seattle. Nordenson’s profile of the U.S. Congressman Mike Pence, the conservative Republican who is spearheading a federal media shield law, is featured in the current issue of the magazine.

Bree Nordenson: How did the Washington State media shield law effort come about?

Bruce Johnson: Rob McKenna, who’s a Republican, became state Attorney General in the 2004 election and one of his priorities was getting a real shield law here in the state of Washington. He saw the Judy Miller imprisonment and wanted to avoid having the same situation here. He contacted me and Roland Thompson, who’s the executive director of Allied Daily Newspapers in Washington.

BN: Why did the Judy Miller case inspire McKenna to try and pass a state shield law, which would have no bearing in a federal case?

BJ: It wouldn’t apply in a federal case but it would preclude the state from doing the same thing. He couldn’t solve the Judy Miller problem. He couldn’t solve the federal law problem, but at least we could establish here in Washington that we’re not going to send journalists to jail for doing their job.

BN: Does the absolute privilege for confidential source information contain any exceptions?

BJ: There are no exceptions. If it’s a confidential source issue it’s an absolute privilege.

BN: How long did it take to get the bill through the state legislature?

BJ: A bill was introduced by Attorney General McKenna in the legislature in January 2006. McKenna pushed very hard for it and we managed to get the bill through the state House and through the Senate Judiciary Committee, but at the last minute the majority leader of the Senate refused to send it to a floor vote and it died in the last stages of the 2006 congress. I think it’s fair to say that Lisa Brown, who was the Democratic Majority Leader in the Senate [in 2006], simply at the last minute said we have other priorities that we need to address. It was not that she was opposed to it. But I think it’s also fair to say that there was not unanimity within the Democratic side of the state legislature in the Senate.

BN: Why wasn’t there unanimity?

BJ: One reason may be that the Society for Professional Journalists’ western Washington chapter had come out against the bill. One of the main concerns they had was that the bill should have absolute protection for everything to do with a journalist.

BN: SPJ wanted an absolute privilege for nonconfidential information too?

BJ: Yes and so they came out against the bill as a consequence.

BN: Under the state shield law, what requirements do prosecutors have to meet to be able subpoena nonconfidential information or testimony from reporters?

BJ: The person seeking to compel disclosure must prove that the information is highly material and relevant; that it’s critical and necessary to the case; and that the party has exhausted all reasonable and available means to obtain it from alternative sources and that there’s a compelling public interest in the disclosure.

BN: Did you at any point consider including an absolute privilege for nonconfidential information into the bill?

BJ: I always thought that politically one could never obtain an absolute privilege for outtakes. I’m not sure there is any shield law in the United States that provides for an absolute privilege of outtakes or notes.

BN: That’s why I find SPJ’s opposition so surprising.

BJ: I was surprised too. It was counterproductive and it seemed unrealistic.

BN: Did you encounter opposition from other sources?

BJ: Yes. There were a number of state prosecutors that came out against it. And this Texas insurance company funded a lobbyist to try and stop it because they had had a case against somebody in San Antonio who had broken a story about their outsourcing attempts, and they were still basically bearing a grudge against the entire news media as a consequence. They were simply seeking revenge—they were spending their shareholders money seeking revenge on media in other states.

BN: That’s bizarre.

BJ: True. There’s an article out there by Nina Shapiro of the Seattle Weekly and she explains it. What was helpful this year was that the insurance company decided not to fund a lobbyist.

BN: How does the bill define a journalist? Are bloggers covered?

BJ: The final statute basically says “a member of the news media means” and then it lists, newspaper, magazine, publisher, news agency, satellite station, TV network, and it says, “or any entity that is in the regular business of newsgathering and disseminating news or information to the public by any means, including but not limited to print, broadcast, photographic, mechanical, Internet, or electronic distribution.” That would include bloggers to the extent that they are an entity. Somebody like Josh Marshall, for example, of Talking Points Memo is TPM Media LLC, an entity which is clearly in the business of newsgathering and disseminating news or information to the public. There’s another section of the bill that defines the news media as anybody who’s an employee, agent, or independent contractor of that entity. So if TPM Media LLC hires an employee, that person is covered. If they engage a freelancer, that person is covered.

BN: Would Josh Wolf, the Bay Area videographer who spent 225 days in jail for refusing to identify protesters in his coverage of an anti-G8 demonstration, be considered a journalist under your statute?

BJ: If he were a freelancer or a stringer for some network and he was filming for reasons related to journalism then he would be protected.

BN: Would a freelance journalist who gathers news for a story before having pitched it anywhere be protected?

BJ: You probably wouldn’t fit into the definition of the news media in this statute if you were just sort of on the make as an individual. If you incorporate yourself, then you’re an entity and you’re automatically protected. So if I’m Josh Wolf and I apply for a corporate license and I’m Josh Wolf LLC and I go out and gather news, I’m protected automatically at that point without regard to whether I’ve got a contract with the mainstream media or otherwise.

BN: Does the bill define newsgathering?

BJ: No. It doesn’t make a value judgment on what’s news. It’s pretty broad. And we even included new means of distribution. Let’s assume five years or ten years from now news is distributed to you telepathically, it would still be covered. So there won’t be any obsolescence.

BN: So the only loophole in the bill in terms of the journalists it covers would be those who have no contract and are not incorporated?

BJ: Yes. We had to come up with some workable definition so you wouldn’t provide a privilege to virtually anybody in the state who has a MySpace account and offers up new information.

BN: What are the larger implications of this bill’s passage for other states, as well as the federal government?

BJ: I think it will be helpful to show that a state such as Washington has enacted a shield law for a variety of reasons: One, this is an absolute privilege for confidential sources. This puts Washington among the top thirteen states in terms of protection. Two, it’ll help create a federal privilege. A court can accept as a matter of federal common law the existence of such a privilege. Federal rule of evidence 501 directs the federal courts to recognize any privilege where reason and experience suggests that the federal courts should recognize that privilege. The U.S. Supreme Court in 1996 in Jaffee v. Richmond held as a matter of common law that the federal courts would thereafter recognize a psychotherapist-patient privilege. And the reason was that the consensus among the states was that such a privilege was appropriate. And at least one judge—Judge David Tatel in the Judy Miller decision—has basically said, “look at all these states that have shield laws, we should recognize this privilege as well under federal rule of evidence 501.” So at least one judge has already said back in 2005 that this privilege should be accepted as a matter of federal common law. He was one out of three judges on that court. The other two sent Judy Miller to jail. He dissented.

BN: But would a circuit court common law decision be recognized by all circuit courts?

BJ: Any decision by a circuit court is applicable only in that circuit. A circuit could recognize this particular privilege under 501 and if another circuit disagrees, that could go to the U.S Supreme Court, and they’d be the ultimate decider.

BN: Are you happy with the final bill?

BJ: I’m very pleased. It’s going to be helpful in terms of making sure that reporters are comfortable getting information from confidential sources, because they really do have the ability to promise confidentiality as opposed to only promising confidentiality until they get tired of sitting in prison.

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Bree Nordenson a former assistant editor of CJR.