Washington Legislature takes another crack at journalist shield law

The Washington State Legislature tried last year to enact a journalists' shield law, protecting journalists from being forced to present court testimony on unnamed sources or any information gathered during the course of their work as reporters. The bill became mired in process and never came to a vote. Thankfully, the bill has reappeared in this year's session.

In the absence of a federal law protecting journalists' right to protect their sources and independent investigations from government-compelled disclosure, state legislatures across the country are pursuing bills similar to Washington's.

Journalists' organizations, free speech advocates, consumer groups and editorial boards across Washington strongly support a shield law, citing the public's need for a strong independent press. Press freedom - and by extension, the public good - are compromised when reporters can be required to act as investigative arms of the government.

Nevertheless, the Washington shield law's prospects for passage this year are unclear at best, with majority Democrats reportedly split on the issue. Here's the text of the Senate bill:

State of Washington 60th Legislature 2007 Regular Session
By Senators Kline, Kohl-Welles, Fairley, McCaslin and Marr

AN ACT Relating to a privilege from compelled testimony for members of the news media; and adding a new chapter to Title 5 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1.

(1) Except as provided in subsection (2) of this section, no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process may compel the news media to testify, produce, or otherwise disclose:

(a) The identity of a source of any news or information or any information that would tend to identify the source where such source has a reasonable expectation of confidentiality; or

(b) 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, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised. This does not include physical evidence of a crime.

(2) A court may compel disclosure of the news or information described in subsection (1)(b) of this section if the court finds that the party seeking such news or information established by clear and convincing evidence:

(a)(i) In a criminal investigation or prosecution, based on information other than that information being sought, that there are reasonable grounds to believe that a crime has occurred; or

(ii) In a civil action or proceeding, based on information other than that information being sought, that there is a prima facie cause of action; and

(b) In all matters, whether criminal or civil, that:

(i) The news or information is highly material and relevant;

(ii) The news or information is critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto;

(iii) The party seeking such news or information has exhausted all reasonable and available means to obtain it from alternative sources; and

(iv) There is a compelling public interest in the disclosure. A court may consider whether or not the news or information was obtained from a confidential source in evaluating the public interest in disclosure.

(3) The protection from compelled disclosure contained in subsection (1) of this section also applies to any subpoena issued to, or other compulsory process against, a nonnews media party where such subpoena or process seeks records, information, or other communications relating to business transactions between such nonnews media party and the news media for the purpose of discovering the identity of a source or obtaining news or information described in subsection (1) of this section. Whenever a subpoena is issued to, or other compulsory process is initiated against, a nonnews media party where such subpoena or process seeks information or communications on business transactions with the news media, the affected news media shall be given reasonable and timely notice of the subpoena or compulsory process before it is executed or initiated, as the case may be, and an opportunity to be heard. In the event that the subpoena to, or other compulsory process against, the nonnews media party is in connection with a criminal investigation in which the news media is the express target, and advance notice as provided in this section would pose a clear and substantial threat to the integrity of the investigation, the governmental authority shall so certify to such a threat in court and notification of the subpoena or compulsory process shall be given to the affected news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation.

(4) Publication or dissemination by the news media of news or information described in subsection (1) of this section, or a portion thereof, shall not constitute a waiver of the protection from compelled disclosure that is contained in subsection (1) of this section. In the event that the fact of publication of news or information must be proved in any proceeding, that fact and the contents of the publication may be established by judicial notice.

(5) The term "news media" means:

(a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any person or entity that is in the regular business of disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;

(b) Any person who is or has been a journalist, a scholar or researcher employed by any institution of higher education, or other individual who either: (i) At the time he or she obtained or prepared the information that is sought was earning or on a professional track to earn a significant portion of his or her livelihood by obtaining or preparing information for dissemination by any person or entity listed in (a) of this subsection, or (ii) obtained or prepared the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of any person or entity listed in (a) or (b)(i) of this subsection; or

(c) Any parent, subsidiary, or affiliate of the entities listed in (a) or (b) of this subsection to the extent that the subpoena or other compulsory process seeks news or information described in subsection (1) of this section.

NEW SECTION. Sec. 2. Section 1 of this act constitutes a new chapter in Title 5 RCW.

The media's job is to interest the public in the public interest. -John Dewey