W.Va. shield bill passed, awaits acting governor's signature

Kristen Rasmussen | Reporter's Privilege | Feature | March 14, 2011

The West Virginia Legislature passed a state shield law for reporters over the weekend. The bill will now go to acting Gov. Earl Ray Tomblin for his signature. If signed into law, West Virginia would become the 40th state, along with the District of Columbia, to provide statutory protection to subpoenaed reporters.

The measure provides West Virginia reporters with a qualified reporter's privilege to refuse to disclose confidential sources, and documents that could identify confidential sources, in civil, criminal, administrative and grand jury proceedings. Although the definition of "reporter" in the new law limits the protection to those who gather and disseminate information to the public "for a portion of the person's livelihood," it also specifically protects student journalists.

"This language puts West Virginia at the very forefront of the country in recognizing the value of student journalism and the importance of protecting students who are increasingly doing professional-caliber work," said Frank LoMonte, executive director of the Student Press Law Center. "We are very, very grateful to the sponsors for entertaining this improvement, which truly makes this statute complete and makes it a model for the rest of the country."

The bill, H.B. 2159, exempts testimony that would prevent imminent death, serious bodily injury or unjust incarceration, and limits the protection to confidential information only.

The House of Delegates overwhelming passed the measure 99-0 Saturday night, agreeing to a Senate amendment on the final day of the 60-day legislative session.

West Virginia likely did not have a statutory shield law earlier because of courts' general acceptance of the state Supreme Court's articulation of the qualified reporter's privilege in Hudok v. Henry, according to the West Virginia portion of The Reporters Committee for Freedom of the Press' privilege compendium. Under Hudok, a reporter can be compelled to disclose his or her confidential sources or newsgathering materials only upon a clear and specific showing that the information is: highly material and relevant; necessary or critical to the maintenance of the claim; and not obtainable from other available sources. An attempt to codify this protection with a bill in 2007 never made it out of committee.

The House bill introduced this term originally contained the three-part test, but the House Judiciary Committee amended the bill to omit the qualified language. The approved bill provides stronger protection, while still maintaining the constitutionally based qualified privilege in Hudok, a hybrid of protection that is a "terrific improvement" and "strengthens West Virginia law for newsgatherers," according to West Virginia media lawyer Sean McGinley.

"This makes sure that at least the qualified privilege that covers all newsgathering activities applies even if the confidential sources absolute privilege does not," he said.