The debate over how much protection journalists should receive in protecting confidential sources resurfaced Tuesday, with supporters arguing a state shield law was necessary to ensure the free flow of information.
The bill, which has not yet been given a number, would grant reporters absolute privilege for protecting confidential sources – the same exemption from testifying in court that is granted to spouses, attorneys, clergy and police officers.
Currently, Washington has no shield law, but its courts have ruled in favor of qualified privilege based on the First Amendment and on common law.
Sen. Brian Weinstein, a Mercer Island Democrat who was a vocal critic of the measure last year, said testimony Tuesday changed his mind on the issue.
“I walked away realizing that existing law might have a chilling effect on the news media doing its job,” he said. “There’s no reason to put reporters in fear of going to jail for doing their job.”
David Zeeck, president of the American Society of Newspaper Editors and executive editor of The News Tribune of Tacoma, and Susannah Frame, an investigative reporter with KING-TV in Seattle, told the Senate Judiciary Committee that their news organizations had been threatened with subpoenas for investigative pieces that required protecting whistleblowers’ identities.
Frame said a confidential source was central to a story she did last year about a security flaw at Seattle-Tacoma International Airport that ultimately led the Port of Seattle to do its own investigation, finding that 400 badges of former workers were still active.
“I think that worked to the public good. I feel better about going to Sea-Tac now,” she said. “That story would not have happened without this guy, who was really scared, but I consider him a brave person and he wanted to bring this to light. Believe me, the port wanted me to tell them who he was.”
Outside of the committee, Zeeck said the public is best served by news media that are able to get information they might otherwise not obtain without the help of confidential sources.
“I think that society has an interest in balancing the little people who might disclose a wrong against the powerful who want to continue to do wrong, whether it’s a government or a business,” he said.
But Sen. Mike Carrell, R-Lakewood, said he wasn’t sure this measure was the way to get a better informed public.
It’s important for the public to be given information, but when sources are allowed to remain secret, the whole truth is not getting out, he said.
Thirty-two states and the District of Columbia have enacted shield laws. A federal shield law had been considered in the 109th Congress, but no law was passed last year.
The Reporters Committee for Freedom of the Press said four other states also are considering shield laws this year: Utah, Missouri and Massachusetts, Texas.
Washington’s proposed law would provide a more limited privilege on materials such as unpublished notes and tapes. Under its provisions, the media could be forced to disclose that information under certain circumstances, including when a judge finds it is necessary in a criminal or civil case and cannot be obtained elsewhere.
The Western Washington chapter of the Society of Professional Journalists opposed that language last year, saying it didn’t go far enough to protect unpublished notes, out-takes, tapes and photographs from seizure.
Kirsten Kendrick, president of the local SPJ chapter, said the board would discuss the new bill next week before deciding whether to support it.
Several people testified in support of the measure, including Dan Satterberg of the King County prosecutor’s office, which already has a rule not to subpoena reporters.
“It has to do with how much we value the role of the institution of the media in our republic,” he said. “The information that comes from investigative reporters is a check and balance on the exercise of governmental power.”
The measure overwhelmingly passed the House last year on a bipartisan 87-11 vote only to get stopped up in the Senate, where it was never brought up for a floor vote.
Sen. Adam Kline, a Seattle Democrat who is chairman of the committee and prime sponsor on the bill, said he was confident he would be able to get the bill through committee, but less optimistic about its chances on the Senate floor.
Opposed to the bill are the Washington Association of Criminal Defense Lawyers, the Washington Defense Trial Lawyers, and the King County Bar Association, which argued that absolute privilege substitutes a journalist’s opinion for that of a judge as to whether information is critical.
Mark Risking, with the King County Bar Association, also argued that the definition of news media was too broad.
“We’re concerned that it would substantially change the law and extend this privilege to a largely undefined, unregulated and barely defined profession,” he said.
Weinstein said he also felt the definition was too broad, and would work with lawmakers on the language.
The bill defines a member of the media as anyone who earns a substantial portion of his or her income from publishing or broadcasting. Generally, authors of occasional opinion pieces or Internet bloggers would not be covered.