By Gene Barton

On January 10, 1979, King County Superior Court Judge William C. Good-loe entered an order compelling the Bellevue Daily Journal-American to turn over information about confidential sources in response to interrogatories propounded by a libel plaintiff. Judge Goodloe thus unwittingly ushered in the brief-but-lasting era of journalistic privilege in Washington.

As you no doubt know, the media’s “right” to keep unnamed sources unnamed has been a bit of a hot topic lately in the other Washington. (See Commentary on Page 3.) There still is no such privilege recognized under federal law in criminal cases, but 48 states, including Washington, and the District of Columbia recognize some form of qualified media privilege against disclosure of confidential sources. Thirty-one states have adopted statutory “shield laws.” Courts in the other 17 states -- including lower courts in three states -- have adopted a qualified common law privilege. Washington is among this group. Only Wyoming and Hawaii have failed to follow suit.1

Following Judge Goodloe’s ruling, Washington’s common law privilege sprang into being in both the civil and criminal contexts during a four-year flurry of five appellate court rulings between October 1980 and October 1984. Since then, the Washington appellate courts have been mum on the subject.

The Washington Court of Appeals, in a split decision, reversed Judge Goodloe in Senear v. The Daily Journal-American, 27 Wn. App. 454 (1980). The Supreme Court, with only six justices participating (though all agreeing), affirmed that ruling at 97 Wn.2d 148 (1982).

While agreeing with the unanimous opinion of other courts that “the First Amendment affords a reporter no absolute privilege of nondisclosure of confidential news sources in either a criminal or civil action,” the Senear court -- like many of those same courts -- found a qualified common law privilege.2 The court drew on State ex rel. Haugland v. Smythe, 25 Wn.2d 161, 168 (1946), a case concerning the confidentiality of a delinquent juvenile’s county welfare records, to adopt a four-part test for determining whether a journalist’s assertion of privilege would pass muster:

(1) The communication must originate in a confidence that it will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.3

The court adopted the first two elements almost out of hand. The third element, the court found, “does exist with considerable force today.” With respect to the fourth, the court adopted the analysis of the Court of Appeals:

[T]wo competing interests are at stake: the interest in allowing the press unfettered access to sources of information and the interest in allowing courts and litigants unimpaired access to testimony and relevant information in civil litigation.

With that in mind, the Senear court found that “the injury from failing to establish the privilege would be greater than the benefit to be gained by requiring the testimony in civil litigation.”4

The court then set forth another four-part test under which “the privilege can be defeated.” First, the claim for the information “must not be frivolous or brought for the purpose of harassing the reporter.” Second, the information sought “must . . . go to the heart” of the requesting party’s claim. Third, the requesting party “must exhaust reasonably available alternative sources before a reporter is compelled to disclose.”

Finally, . . . the court must also find that the interest of the reporter in nondisclosure is supported by a need to preserve confidentiality. . . . The reason for this requirement is to prevent journalists from invoking the protection of their nameless sources when no confidential relationship need be protected.5

Senear has since remained the solid foundation for Washington law on journalistic privilege. It was followed in Clampitt v. Thurston County, 98 Wn.2d 638 (1983), in which the court stated that “reporter disclosure is to be considered a last resort, especially when the reporter is not a party to the case.”6 Clampitt also is noteworthy for the significant onus it places on the requesting party to establish that all “reasonably available alternative sources” have been exhausted. Relying on a D.C. Circuit case, the court implied that requiring up to 60 depositions “and perhaps even more” would not be an undue burden on the requesting party.7 The court also found that “specific findings are necessary” in the trial court to clear this hurdle, including listing “the alternatives it considered and. . . its reasons for rejecting them.”8

Twenty months later, Senear again formed the basis for the Supreme Court’s decision in State v. Rinaldo, 102 Wn.2d 749 (1984), in which the court extended the common law civil privilege into the criminal arena and effectively brought an end to Washington jurisprudence on the subject. The court did not do so, however, before James Andersen, then Chief Judge of the Court of Appeals, staged a one-man mutiny of sorts. In Division One, Judge Andersen (with Judge Durham concurring separately) found an absolute privilege under Article 1, Sec. 5 of the Washington Constitution.9

The majority in a divided Supreme Court in Rinaldo, however, would have none of it, calling Judge Andersen’s position “inapposite to all case law.”10 The decision itself, breaking new ground as it did, is surprisingly terse. The court, relying on substantial state and federal case law, favored “a ‘balancing test’ approach, which pits the news reporter’s need for confidentiality against the defendant’s right to compulsory process and a fair trial.”11

Otherwise, the court carried over the first three privilege principles adopted in Senear and adjusted the fourth for application in criminal cases.

We recognize the defendant’s right to a fair trial presents a more compelling interest in favor of disclosure than a civil litigant. Although journalists who are parties have little or no privilege, a news reporter, as here, who is not a party to the underlying action, should receive greater protections. We find, as do the vast majority of other courts, the press interest to be sufficiently important to justify a qualified privilege.12

The court then also carried over the four-part Senear test for defeating the privilege.13 And that was it.

Rinaldo concerned a criminal defendant’s efforts to obtain exculpatory or impeachment evidence from The Everett Herald. Given that the Washington appellate courts have not weighed in again on this issue, it is left for another day to find out whether and to what extent our state’s privilege extends to a reporter’s refusal to disclose his or her confidential source when called upon to do so under a grand jury subpoena. In such a case, however, the reporter would be “a party to the underlying action,” which -- as in D.C. -- would be a resulting contempt case, and, therefore, according to the Rinaldo court, would “have little or no privilege.” We shall wait and see. n

1 See New York Times Co. v. Gonzales, 2005 U.S. Dist. LEXIS 2642 (S.D.N.Y. Feb. 24, 2005) at *130Ð35 & nn.34Ð40.

2 97 Wn.2d at 151Ð52 (emphasis in original).

3 Id. at 153.

4 Id. at 154.

5 Id. at 155Ð56.

6 98 Wn.2d at 646.

7 Id. at 645 (citing Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981)).

8 Id.

9 See State v Rinaldo, 36 Wn. App. 86 (1983). Judge Andersen’s opinion is certainly an excellent intellectual exploration on the subject, though it did not survive long. Of particular interest is his discussion of the genesis of free press protection in Art. 1, ¤ 5 during the 1889 constitutional convention. See id. at 91Ð95. See also Robert F. Utter, The Right to Speak, Write and Publish Freely: State Constitutional Protection Against Private Abridgement, 8 U. Puget Sound L. Rev. 157, 172 (1985). As the newest member of the Supreme Court when Rinaldo came before it for review, Judge Andersen did not participate in the decision reversing his finding of an absolute privilege under the state Constitution.

10 102 Wn.2d at 753.

11 Id. at 752.

12 Id. at 754.