I. Introduction: History & Background

Washington State's courts have recognized, under the state's common law, a qualified confidential source privilege in both criminal and civil actions. In the modern (post-Branzburg era) the state's appellate courts have issued only three published decisions regarding reporter's privilege: Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982) ("Senear"); Clampitt v. Thurston County, 98 Wn.2d 638, 658 P.2d 641 (1983) ("Clampitt"); and State v. Rinaldo, 102 Wn.2d 749, 689 P.2d 392 (1984) ("Rinaldo"). Only these three decisions have precedential authority in Washington courts. RCW 2.06.040; RAP 10.4(h).

The state has no published court decisions on the non-confidential journalist's privilege, but would likely follow federal decisions applying a First Amendment qualified privilege.

Like "the curious incident of the dog in the night-time" in Sir Arthur Conan Doyle's 1892 story Silver Blaze, observers may well wonder why the state's judicial dogs have not barked since 1984. Perhaps, as Sherlock Holmes deduced, there was nothing to bark at -- and that, in effect, the reporter's privilege is so well-entrenched that there have been few efforts to breach it.

In April 2007, the State finally enacted a shield law. See Section II-A below.