Reporter’s shield redux

A reporter’s privilege bill stalled by opposition last year flies through the Washington Legislature this time around.

From the Spring 2007 issue of The News Media & The Law, page 32.

By Elizabeth Soja

While talk of a new federal shield law for 2007 is again growing louder in Washington, D.C., the bigger news in reporter’s privilege came from Washington state last month.

Thanks to the renewed efforts of shield law advocates, Washington became the 33rd state, in addition to the District of Columbia, to enact a reporter’s shield law. The legislation’s success in this year’s session has left some marveling at the success of a bill that, despite passing the state House, never even made it to the Senate floor in 2006.

The new statute, signed into law by Gov. Chris Gregoire on April 27, provides an absolute privilege for confidential sources. This means that a reporter can never be compelled to reveal the identity of a source to whom he or she has made a promise of confidentiality.

Additionally, the law contains a qualified privilege for newsgathering materials and says that in order to invoke the law’s protections, a journalist must be employed or connected with an “entity that is in the regular business of news gathering and disseminating news or information to the public,” regardless of how much income the journalist derives from his or her reporting.

In the absence of shield legislation, Washington courts have ruled in favor of a qualified privilege for journalists based on common law and the First Amendment.

An aggressive opponent

Some think the 2007 bill was successful partially because it no longer faced opposition from two important groups — the United Services Automobile Association (USAA) and the Society of Professional Journalists — that opposed the law for contrary reasons.

In 2004, a Texas television station aired a story about Texas-based insurance company USAA that alleged the company was outsourcing computer jobs to India. The report was based on documents obtained from an anonymous source from within the company, who later came forward voluntarily.

In response to the report and the confidential source, the group decided to fight proposed reporter’s shield laws around the country that would allow sources to remain anonymous.

Washington’s 2006 bill was one they chose to fight. In order to oppose the law, USAA enlisted the services of a well-connected Washington state lobbyist and sent its senior vice president to testify against bill in the House Judiciary Committee.

USAA “spent a bunch of money here, proudly, to try and block” the Washington law, Rowland Thompson, executive director of Allied Daily Newspapers of Washington, said last year.

But according to Thompson, USAA’s position changed in 2007 when the company hired a new general counsel who apparently decided to take a less aggressive stance toward shield laws. Thompson said the lobbyists hired by USAA last year were not retained this year, and opposition to the law dwindled considerably.

A USAA spokesman declined to comment beyond saying that the law “is still a concern” for the company.

“If you have someone being paid large amounts of money to make sure something doesn’t happen, they will make sure it doesn’t happen,” Thompson said. “If they aren’t being paid, their attention tends to wander.”

Seattle media attorney Michele Earl-Hubbard agreed and said that “USAA not putting all their dollars into opposing the shield law made it easier this year. There was less information being thrown at the Legislature about all the worst-case scenarios under the law.”

‘The best we’re going to get’

USAA’s opposition was not the shield bill’s only obstacle last year. The Society of Professional Journalists (SPJ) declined to support the law, but on the grounds that the privilege was too weak.

“We thought the qualified protection for reporter work product was poorly worded,” said Kirsten Kendrick, the president of SPJ’s western Washington chapter and host of “Morning Edition” for National Public Radio’s local KPLU in Tacoma. “The legislation only called for ‘reasonable efforts’ to get the information from somewhere other than the reporter’s materials, and we advocated a law that required exhausting all reasonable and available means to get the information.”

Additionally, Kendrick said that the group was unhappy with the fact that last year’s legislation did not specifically include Internet journalists and freelancers.

In response, SPJ drafted a competing bill. According to Kendrick, the “bill didn’t make it out of committee, but we thought it was a small victory just getting it introduced.”

When the 2007 draft of the legislation incorporated elements of SPJ’s alternative 2006 bill, the group decided to support the law for pragmatic reasons.

“After talking to the key players in the Legislature, it was our understanding that this was the best we were going to get,” Kendrick said.

Ideally, the group wanted absolute protection for materials such as notes and outtakes. “We would have liked stronger work product protection,” Kendrick said, “but the reality is that this is the best we’re going to get, and we are behind it.”

The new law provides a qualified protection for any “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.”

A judge can compel a journalist to turn over notes, outtakes, photographs and recordings when the information is “highly relevant” to either a criminal or civil case and not available from alternative sources. Additionally, the party seeking the information must exhaust “all reasonable and available means to obtain it from alternative sources” — language that Kendrick said SPJ advocated last year.

Kendrick said that SPJ’s push for a stronger law should demonstrate to groups in other states that their efforts to strengthen proposed reporter’s privilege legislation can be fruitful.

“We felt like we needed to get our voice out there,” Kendrick said. “If it passed the way it was worded last year, we would have felt we didn’t do our job to raise concern and at least try to make it stronger. Why not try?”

Bipartisan support

Of course, USAA and SPJ were not the only factors in the different outcome for the 2007 bill. Politics played a roll as well.

Thompson said that state Sen. Adam Kline, a Democrat who introduced the bill in the Senate, “worked very hard this year, talked to members of the caucus, and considered the shield law to be his priority.”

“People on both sides of aisle were strongly in favor of the legislation,” Thompson said. He added that the support of the new “overwhelmingly Democratic majority” in the state House and Senate as of the fall 2006 election combined with the support of “top Republicans” made the 2007 bill easier to pass.

Thompson said supporters included the House majority and minority leaders, the chairman and the ranking member of the House Judiciary Committee, State Attorney General Rob McKenna, and King County prosecutor Norman Maleng.

“We knew we had the votes to get it passed all along,” Thompson said of last year’s bill. “It was just never brought up for a vote.”

In the end, Thompson said that while all of the support in 2007 was very helpful, “the truth of the matter was that having USAA go away and not spend a ton of money made all the difference in the world.”

Earl-Hubbard said “the final version still caused some concerns with journalists, but we just weren’t going to get a law that would cover every situation.”

“Regardless, the law will hugely improve things for journalists in the state,” she added.