Competing shield laws go to committee

OLYMPIA – Debate over legal protection for journalists begins this week as the Legislature considers competing bills on whether and when a judge should be allowed to require them to turn over their notes.

Republican Attorney General Rob McKenna and state Rep. Brendan Williams, D-Olympia, have introduced measures that would give professional journalists absolute privilege on protecting confidential sources, the same exemption from testifying in court that is granted to spouses, attorneys, clergy and police officers. But their bills differ significantly when it comes to whether reporters should be forced to turn over their unpublished notes.

Under McKenna’s bill, the media could be forced to disclose information under certain circumstances, including when a judge finds the information is necessary in a criminal or civil case and cannot be obtained elsewhere.

Journalists “deserve a privilege for their confidential sources,” McKenna said. “They deserve some protection for their work product as well, so they’re not harassed by civil litigants and so that they don’t become private investigators for law enforcement.”

But, he added, “they’re not above the law.”

The Western Washington chapter of the Society of Professional Journalists has said McKenna’s bill doesn’t go far enough. It sought the help of Williams, whose bill was written to mirror the law in Oregon and would protect unpublished notes, outtakes, tapes and photographs from seizure.

“This is just a means of encouraging a full discussion of these different perspectives,” Williams said.

McKenna’s bill was scheduled for a hearing before the Senate Judiciary Committee on Wednesday and before the House Judiciary Committee on Friday. The House committee also will hear Williams’ bill.

The local chapter of SPJ would rather have no change than McKenna’s bill.

“We would be perfectly happy to leave things as they are if you can’t get the right bill,” said Marcus Donner, chapter treasurer. “The core of a shield law is about protecting the public’s right to know. The best way to do that is to protect the press’s neutrality and make sure they’re not being dragged into legal affairs.”

Washington has no shield law, but its courts have ruled in favor of qualified privilege based on the First Amendment and on common law.

McKenna said that SPJ’s belief that no law is better than his is misplaced.

“The First Amendment doesn’t provide absolute protection,” he said. “The First Amendment didn’t keep Judy Miller from going to prison.”

Miller, a New York Times reporter, was jailed for 85 days for refusing to name a source during an investigation into the leaked identity of a CIA operative.

Rowland Thompson, executive director of Allied Daily Newspapers, a trade organization for newspapers in the state, agreed.

Thompson said that there would be too much opposition to Williams’ bill to protect journalists’ notes and other unpublished material. He said that McKenna’s bill still strengthens existing case law protecting journalists.

Thirty-one states and the District of Columbia have enacted shield laws and federal shield legislation is being considered in Congress.