By Eric B. Martin

As reported in the September issue of the Bar Bulletin, Washington is one of 17 states with common-law, but not statutory, protection for journalists protecting confidential sources. In order to remedy this situation, Attorney General Rob McKenna has proposed a bill creating a Washington shield law. The bill would protect reporters' sources and would provide protection for a reporter's "work product" unless the material is critically important to a viable pending case and is unavailable from other resources.

Historic events such as the Watergate scandal and the Pentagon Papers, and more recent events such as the Valerie Plame affair, the BALCO grand jury investigation and the Abu Ghraib scandal, highlight the media's function of serving the public interest by informing the public of potential abuses of power and by discussing and explaining the otherwise unknown workings of American economy and politics. Public awareness of the need to protect the integrity and the confidentiality of the newsgathering process has accordingly increased. Thus, it is only natural to shift our attention to Washington's laws and the ways in which the state protects journalists from forced disclosure of confidential and newsgathering information.

Press protections have been carved out by Washington courts at common law and have been recognized in hundreds of First Amendment decisions from the federal and state courts. McKenna and the working press feel that the time has come for Washington to join the majority of other states in enacting legislation that recognizes the First Amendment and common-law protections for reporters' confidential information, as well as other information derived from and produced by the newsgathering process. The need for these protections "reflects a paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters."¹

The ability to protect both confidences and non-confidential information has made the reporting of a wide variety of events possible, from Watergate to day-to-day revelations on the inner machinations of government and business. As one federal court has stated, "effective gathering of newsworthy information in great measure relies upon the reporter's ability to secure the trust of news sources. Many doors will be closed to reporters who are viewed as investigative resources of litigants. The hindrance to the free flow of information which accompanies this perception is inimical to the First Amendment."²

Clarifying and validating these protections through the passage of a shield law will ensure that the free flow of information from the press will not be unduly hindered. In addition, passing balanced legislation aimed at protecting the press within appropriate limits will promote the willingness of the would-be whistleblower to come forward when conscience insists upon it.

More directly, a shield law is needed because of the uncertain and even somewhat unsettled status of press protections under current Washington law.³ This privilege is rooted, though, in the unpredictable world of the common law and is not even directly grounded in the First Amendment. Moreover, while most federal circuit courts (including the Ninth Circuit) and most states recognize not only a qualified confidentiality privilege, but also a qualified journalistic privilege under the First Amendment for newsgathering information and journalistic work product, the Washington state courts have not as yet formally addressed the application and scope of this additional privilege.⁴

In the face of this pervasive uncertainty, establishing the contours of such a privilege is desirable. As the Ninth Circuit has stated, "society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public, is an interest of sufficient importance to justify some incidental sacrifice of sources of facts needed in the administration of justice."⁵

A shield law is desirable for other reasons, as well. Unlike their colleagues in other states, Washington reporters and media face additional subpoena risks and potentially huge legal expenses in protecting confidential sources and, in pursuing important news stories, may find themselves competitively hamstrung, given the existing uncertainties in state legal protections. Uniform standards would provide clear direction and protection and help to prevent the unnecessary costs of litigation.

The attorney general and the working press argue that the time is right for a Washington shield law. Washington's media, and their employees and freelancers, should have protections commensurate with this state's growing prominence as a competing center of news and information and of international trade and commerce. As John Adams put it, "The liberty of the press is essential to the security of the state."