A tale of two shields
A reporter’s shield bill flies through the Connecticut Legislature, while a similar bill in Washington state goes down in flames.
From the Spring 2006 issue of The News Media & The Law, page 18.
By Casey Murray
Two years ago when a Texas television station reported that an insurance and financial services company was outsourcing computer jobs to India, it relied on several company documents obtained from an anonymous source.
Still angered by the broadcast and the reporting method used, the company this year helped kill legislation that would have given reporters in Washington state immunity from testifying or turning over their notes.
United Services Automobile Association (USAA), a San Antonio-based insurance and financial services company, has apparently decided to fight proposed reporter’s shield laws in legislatures nationwide.
While it worked in Washington, the company’s efforts failed in Connecticut, where a bill with a qualified privilege sailed through the legislature by an overwhelming margin. The experiences in both states reveal a lot about what it takes to get a shield law passed and how important it is for supporters to agree on specifics.
In Washington, USAA “spent a bunch of money here, proudly, to try and block this thing,” said Rowland Thompson, executive director of Allied Daily Newspapers of Washington and a chief architect of the proposed shield law. “It’s a grudge deal. They will go anywhere in the country. They can’t defeat it on their own, but when you combine them with prosecutors, it’s dangerous.”
A spokesman for USAA declined to comment on the company’s position, although it appears its strong opposition for shield laws began in February 2004 when WOAI-TV in San Antonio reported that USAA outsourced its information technology jobs to India. The broadcast included several USAA documents and an interview with USAA CEO Bob Davis extolling the advantages of outsourcing.
USAA sued the station seeking return of the documents as well the identity of the leaker. Texas does not have a shield law and eventually, the source — a former employee — waived confidentiality.
When USAA learned Washington was considering a bill, it hired well-connected Olympia lobbyist Cliff Webster to lead the fight against the bill and sent Senior Vice President Bill McCartney to testify against the shield law before the House Judiciary Committee in January.
The proposed shield law would have provided an absolute privilege for journalists’ sources and a qualified privilege for work product. Previous court decisions have created a common law qualified privilege for both work product and sources.
McCartney told the committee that USAA would support an absolute shield in cases involving government sources, but not private sources. He said that had Texas had an absolute privilege, “we would never have been able to find out who those sources were and they would still be with the company.”
Milt Doumit, chief of staff for Washington Attorney General Rob McKenna, who sponsored the bill, said USAA has “made it company policy to fight the reporters’ shield bills in the states where they’re being discussed. They had a very good lobbyist out here and basically he fought all year long. He’s been around a long time and has a lot of friends in the Legislature on both sides of the aisle. He was able to generate alarm among those who are law enforcement types. He lit up that faction in the Legislature. Then there are some in the Legislature who feel themselves to have been unfairly treated by the press and he lit up that faction.”
The proposed shield law easily passed the state House 87-11 in February. But Senate Majority Leader Lisa Brown (D-Spokane) kept it from going further.
“It was never brought up on the Senate floor for a vote, although I think it’s fairly widely understood that the votes were there for it to pass,” said Sen. Stephen Johnson (R-Covington).
“The Republicans and Democrats would have contributed about equal numbers of votes on the floor,” said Sen. Adam Kline (D-Renton). “We counted 28, Sen. Johnson and I, and we needed 25.”
The bill’s demise was a disappointment to media lawyers, including Bruce Johnson of Davis Wright Tremaine.
“From the standpoint of the members of the news media, knowing how difficult it is to persuade judges there is a qualified privilege, it would have simplified things a lot to be able to slap a statute down in front of a judge, rather than, ‘Here’s a Ninth Circuit [U.S. Court of Appeals] case that applies a three-part test,'” Johnson said.
In Connecticut, the Legislature rebuffed USAA’s efforts by overwhelmingly passing law which provides a qualified privilege for both confidential and nonconfidential material. The bill — a version of which could not make it out of committee last year — had the unanimous support of the Senate and passed the House 136-11.
“Last year there was very little that was done to drum up support for the bill,” said media lawyer Daniel Klau. “Only two people testified at the public hearing last year. One of them supported the bill and the other was a very vocal critic of shield laws. This year, instead of having two people testify at the public hearing, it was a full-court press.”
The media almost fully backed the bill — with strong support of Rep. James Spallone (D-Essex). The law provides protection not only to traditional journalists, but also gives some protection to the electronic media, stopping just short of covering bloggers.
“The bill as originally drafted was an absolute protection for confidential sources and a qualified privilege for nonconfidential material and that passed the House in April by a pretty wide margin,” said Karen Kaiser, senior counsel for the Tribune Co., who worked on the bill. “That form was not accepted by the Senate and it was amended very, very late in the game, the night before the end of the legislative session, to make the entire bill a qualified privilege.”
Even with the compromise, the Connecticut media was happy to get such a strong bill passed.
“I’m very pleased it passed by such a wide margin in the House when it was an absolute privilege bill,” Klau said. “In its strong form, it garnered great support. Of course, one can be a bit crass and imagine that it’s an election year and there’s a number of politicians who would prefer to have the press on their side rather than taking pot shots at them for opposing a pro-press bill. But I’m an optimist, so I like to think they liked the bill on its merits.”
In Washington, disagreement among journalists and concern from prosecutors also played a large role in the shield law’s failure.
“I don’t think there was one big cause” for the bill’s failure, said Bill Will, general manager of the Washington Newspaper Publishers Association.
At the beginning, however, the bill appeared to have a good chance of passing. McKenna, elected statewide and wielding power to introduce bills, sent the measure to the Legislature where it had strong support from King County Prosecuting Attorney Norm Maleng in Seattle. With their support, the shield law proposal avoided an all-out assault by the state’s prosecutors, who didn’t take an official position, though most still made their thoughts known to the legislators.
Prosecutor opposition to the bill automatically put many legislators on edge.
“There was word going out that the prosecutors didn’t like it,” said Sen. Kline. “There are a lot of Republicans and Democrats who will not vote contrary to the prosecuting attorneys. They don’t want a prosecutor back home saying so-and-so voted against the prosecutors. There’s a lot of members of both houses that rather than think through the legal analysis of an issue, they’ll just look to the prosecutors for a thumbs up or a thumbs down.”
The media also did not back the bill 100 percent. The Washington chapter of the Society of Professional Journalists opposed the original bill because it thought it did not go far enough to protect journalists and that it should have provided an absolute privilege for work product as well as sources.
“There was no way the prosecutors would have gone for that, absolutely no way, so practically speaking it wasn’t going to happen,” Doumit said. “The reason that’s relevant is not because their opposition killed the bill, it didn’t. I would not put them among the reasons the bill died except that it gave the Senate majority the ability to say that there are disparate views on this bill and that the parties haven’t come together.”
Opponents of the bill also pointed to a column in The Seattle Times by Ryan Blethen, son of Times Publisher Frank Blethen, who argued that journalists do not need a shield law but instead need “trust in the First Amendment.”
The column was “shoved in our faces from time to time about how it was unnecessary to bring this bill forward,” Thompson said.
Without the journalists presenting a strong voice, it became easier for dissenters to express concerns about the bill.
“My first feel was that I was not even sure this bill is even necessary,” said Sen. Brian Weinstein (D-Bellevue), Senate Judiciary Committee vice chairman, who opposed the bill. “Because as I understood the common law in the state of Washington, it was already a qualified privilege and it seemed to be working fine. And from what I heard from the testimony was that no reporter in the state of Washington had even been compelled to reveal a source and I don’t think they’ve even been compelled to reveal work product.”
If that was not enough to derail the shield law in a 60-day legislative session, there was also politics.
“Frankly, I think there were some raw politics involved,” Will said. “The Democratic party is firmly in control in Washington and frankly I think there some thoughts among the Democrats that they didn’t want a Republican attorney general to get too much PR mileage out of getting a shield law passed.”
Democrats agree that politics may have played a role in keeping the bill from receiving a vote, but they say it was because of pressure on the Republicans.
“I think the bill never got to the floor because there were a few senators who agreed with SPJ and thought the bill should be stronger,” Weinstein said. “And then you had a number of Republicans who just didn’t like the bill at all. I heard that they felt like they were threatened by the attorney general’s office. The attorney general came into the Republican caucus and said the newspapers are all going to write bad things about you.”
The bill’s supporters plan on bringing the bill back next legislative session — and this time they know what they are in for.
“You have to be aware that USAA is out there and willing to spend a lot of money,” Thompson said. “But you have to get around the prosecutors and law enforcement community too. This time around, it’s going to be more clear.”
Now that the bill’s supporters know who’s against the bill, they are planning to be better prepared to put up a stronger fight.
“It’s very delicate to push something forward,” Thompson said. “My father was in the Legislature for many, many years and he used to say, ‘Any jackass can kick a barn down, it takes a carpenter to build one.’ It’s really true in this kind of situation.”