On April 28th, Governor Chris Gregoire of Washington State signed a media shield bill into law, making Washington the thirty-second state with a statutory protection for journalists’ confidential sources and the thirteenth state in which a journalist cannot be forced to reveal his confidential source’s identity under any circumstances . In addition, the Washington law protects journalicsts from having to reveal any information obtained during newsgathering activities. Bree Nordenson discussed the legislation with the primary author of the bill, veteran media attorney Bruce Johnson of Davis Wright Tremaine in Seattle. Nordenson’s profile of the U.S. Congressman Mike Pence, the conservative Republican who is spearheading a federal media shield law, is featured in the current issue of the magazine.
Bree Nordenson: How did the Washington State media shield law effort come about?
Bruce Johnson: Rob McKenna, who’s a Republican, became state Attorney General in the 2004 election and one of his priorities was getting a real shield law here in the state of Washington. He saw the Judy Miller imprisonment and wanted to avoid having the same situation here. He contacted me and Roland Thompson, who’s the executive director of Allied Daily Newspapers in Washington.
BN: Why did the Judy Miller case inspire McKenna to try and pass a state shield law, which would have no bearing in a federal case?
BJ: It wouldn’t apply in a federal case but it would preclude the state from doing the same thing. He couldn’t solve the Judy Miller problem. He couldn’t solve the federal law problem, but at least we could establish here in Washington that we’re not going to send journalists to jail for doing their job.
BN: Does the absolute privilege for confidential source information contain any exceptions?
BJ: There are no exceptions. If it’s a confidential source issue it’s an absolute privilege.
BN: How long did it take to get the bill through the state legislature?
BJ: A bill was introduced by Attorney General McKenna in the legislature in January 2006. McKenna pushed very hard for it and we managed to get the bill through the state House and through the Senate Judiciary Committee, but at the last minute the majority leader of the Senate refused to send it to a floor vote and it died in the last stages of the 2006 congress. I think it’s fair to say that Lisa Brown, who was the Democratic Majority Leader in the Senate [in 2006], simply at the last minute said we have other priorities that we need to address. It was not that she was opposed to it. But I think it’s also fair to say that there was not unanimity within the Democratic side of the state legislature in the Senate.
BN: Why wasn’t there unanimity?
BJ: One reason may be that the Society for Professional Journalists’ western Washington chapter had come out against the bill. One of the main concerns they had was that the bill should have absolute protection for everything to do with a journalist.
BN: SPJ wanted an absolute privilege for nonconfidential information too?
BJ: Yes and so they came out against the bill as a consequence.
BN: Under the state shield law, what requirements do prosecutors have to meet to be able subpoena nonconfidential information or testimony from reporters?
BJ: The person seeking to compel disclosure must prove that the information is highly material and relevant; that it’s critical and necessary to the case; and that the party has exhausted all reasonable and available means to obtain it from alternative sources and that there’s a compelling public interest in the disclosure.
BN: Did you at any point consider including an absolute privilege for nonconfidential information into the bill?
BJ: I always thought that politically one could never obtain an absolute privilege for outtakes. I’m not sure there is any shield law in the United States that provides for an absolute privilege of outtakes or notes.
BN: That’s why I find SPJ’s opposition so surprising.
BJ: I was surprised too. It was counterproductive and it seemed unrealistic.
BN: Did you encounter opposition from other sources?
BJ: Yes. There were a number of state prosecutors that came out against it. And this Texas insurance company funded a lobbyist to try and stop it because they had had a case against somebody in San Antonio who had broken a story about their outsourcing attempts, and they were still basically bearing a grudge against the entire news media as a consequence. They were simply seeking revenge—they were spending their shareholders money seeking revenge on media in other states.
BN: That’s bizarre.
BJ: True. There’s an article out there by Nina Shapiro of the Seattle Weekly and she explains it. What was helpful this year was that the insurance company decided not to fund a lobbyist.