In February 2007, the Washington state House of Representatives unanimously (with two lawmakers not voting) passed a shield law granting reporters an absolute privilege for protecting confidential sources, and in March, the state’s Senate followed suit with a 41-7 vote (with one lawmaker not voting) on a similar version of the law. By mid-April, the House agreed to changes in the bill made by the Senate to narrow its definition of “news media” and sent the bill on to Gov. Christine Gregoire (D), who signed the bill into law on April 27.
The votes came one year after the House passed a similar measure that never reached the full Senate floor. Washington has had no shield law until now, although courts had interpreted a qualified First Amendment privilege for journalists in case law.
As amended, the law provides an absolute shield for reporters wanting to protect a confidential source’s identity, similar to existing privileges for clergy, doctors and spouses. The privilege is more limited for “news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised.”
The law allows a court to compel disclosure of that information if it finds by clear and convincing evidence that the party seeking the information has exhausted all other alternative means to obtain it, there is a compelling interest in public disclosure, the information is critical to the maintenance of the claim, and there are reasonable grounds to believe a crime has occurred in criminal cases or that there appears to be a cause of action in civil cases.
The Associated Press (AP) reported that during debate in the Senate, Sen. Mike Carrell (R-Lakewood), tried to amend the measure to give courts the power to compel disclosure of a source’s identity under certain circumstances, but failed.
The AP quoted the bill’s main Senate sponsor, Sen. Adam Kline (D-Seattle), who said the bill was “for the benefit of voters.” He said it would give the public “greater opportunity to know what’s going on in this world, because somebody out there who may have some very sensitive information is now going to be more willing to come forward with it.”
House sponsor and Majority Leader Lynn Kessler (D- Hoquiam) told the AP, “It is really important in a democratic society that we have a free press, that we as citizens know what is going on in our society, that the people in power who have an interest in keeping information from us shouldn’t be allowed to bury that information.”
The law grants a privilege to “members of the news media,” which it defines as any entity engaged “in the regular business of news gathering and disseminating news or information to the public by any means.” Analysis of the statute by several state newspapers seemed to concur that the bill would probably not protect bloggers.
Shield Laws on Agendas in Other States and at the Federal Level
Thirty-two states and the District of Columbia already have shield laws, and Washington is one of several states considering a shield law this year. In April, the Texas Senate Jurisprudence Committee unanimously moved a shield law out of committee. On April 20, the bill fell two votes short of the requisite 2/3 needed to bring it to a full floor vote, but after being reintroduced on April 27 with an amendment added, it passed. The amendment alleviated some of the Senators’ concerns that the bill would hinder criminal prosecutions by creating additional exceptions which could require journalists to testify.
In introducing the bill, S. 966, sponsor Sen. Rodney Ellis (D-Houston) said, “The press plays a vitally important role in our democracy and must be protected from government intimidation. With the face of journalism and law enforcement rapidly changing in the 21st century, it is time for Texas to pass the Free Flow of Information Act to ensure journalists and their sources are protected in their jobs of keeping the public informed.”
Unlike Washington’s bill, the Texas measure provides only a qualified privilege against compelled disclosure, meaning reporters’ testimony could be compelled under certain circumstances, including when a judge finds nondisclosure contrary to the public interest and all reasonable efforts to obtain the information by other means have been exhausted. The bill does provide protection for both sources of information and unpublished information itself.
The Texas bill defines a journalist as “a person who for financial gain, for a substantial portion of the person’s livelihood, or for subscription purposes gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider”
Missouri is also currently considering a state shield law, and there has been some movement on the issue in Utah and Massachusetts as well.
In February 2007, the San Francisco Chronicle reported that Democrats in the United States House of Representatives were prepared to “fast-track” federal shield legislation which has long stagnated in committee every time it has been introduced in recent years. (See “Congress Hears More Testimony on Federal Shield Law” in the Fall 2006 issue of the Silha Bulletin; “New Federal Shield Bill Introduced” in the Spring 2006 issue; “Shield Law Update” in the Fall 2005 issue; “Federal Shield Law Debated in Hearings Before Senate” in the Summer 2005 issue; and “Federal Shield Law Introduced in 109th Congress” in the Winter 2005 issue.)
On May 2, the “Free Flow of Information Act of 2007” was introduced in the U.S. House of Representatives. In introducing the measure, co-sponsor Rep. Mike Pence (R.-Ind.) told the members, “Unfortunately, last year almost a dozen reporters were served or threatened with jail sentences in at least three different federal jurisdictions for refusing to reveal confidential sources.”
Rep. Rick Boucher (D-Va.) was the bill’s other sponsor.
– Ashley Ewald, Silha Fellow and Bulletin Editor