BJ: If he were a freelancer or a stringer for some network and he was filming for reasons related to journalism then he would be protected.

BN: Would a freelance journalist who gathers news for a story before having pitched it anywhere be protected?

BJ: You probably wouldn’t fit into the definition of the news media in this statute if you were just sort of on the make as an individual. If you incorporate yourself, then you’re an entity and you’re automatically protected. So if I’m Josh Wolf and I apply for a corporate license and I’m Josh Wolf LLC and I go out and gather news, I’m protected automatically at that point without regard to whether I’ve got a contract with the mainstream media or otherwise.

BN: Does the bill define newsgathering?

BJ: No. It doesn’t make a value judgment on what’s news. It’s pretty broad. And we even included new means of distribution. Let’s assume five years or ten years from now news is distributed to you telepathically, it would still be covered. So there won’t be any obsolescence.

BN: So the only loophole in the bill in terms of the journalists it covers would be those who have no contract and are not incorporated?

BJ: Yes. We had to come up with some workable definition so you wouldn’t provide a privilege to virtually anybody in the state who has a MySpace account and offers up new information.

BN: What are the larger implications of this bill’s passage for other states, as well as the federal government?

BJ: I think it will be helpful to show that a state such as Washington has enacted a shield law for a variety of reasons: One, this is an absolute privilege for confidential sources. This puts Washington among the top thirteen states in terms of protection. Two, it’ll help create a federal privilege. A court can accept as a matter of federal common law the existence of such a privilege. Federal rule of evidence 501 directs the federal courts to recognize any privilege where reason and experience suggests that the federal courts should recognize that privilege. The U.S. Supreme Court in 1996 in Jaffee v. Richmond held as a matter of common law that the federal courts would thereafter recognize a psychotherapist-patient privilege. And the reason was that the consensus among the states was that such a privilege was appropriate. And at least one judge—Judge David Tatel in the Judy Miller decision—has basically said, “look at all these states that have shield laws, we should recognize this privilege as well under federal rule of evidence 501.” So at least one judge has already said back in 2005 that this privilege should be accepted as a matter of federal common law. He was one out of three judges on that court. The other two sent Judy Miller to jail. He dissented.

BN: But would a circuit court common law decision be recognized by all circuit courts?

BJ: Any decision by a circuit court is applicable only in that circuit. A circuit could recognize this particular privilege under 501 and if another circuit disagrees, that could go to the U.S Supreme Court, and they’d be the ultimate decider.

BN: Are you happy with the final bill?

BJ: I’m very pleased. It’s going to be helpful in terms of making sure that reporters are comfortable getting information from confidential sources, because they really do have the ability to promise confidentiality as opposed to only promising confidentiality until they get tired of sitting in prison.

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