08:11 AM

Washington gets a reporter's shield that covers the Net. Now it's time for a federal privilege

Tomorrow, Gov. Christine Gregoir will sign a bill adding Washington to the list of states with reporter's shield laws. California's shield was written into its Constitution into the 1970s. Washington's shield law is notable for including the Internet in its definition of news media and explictly protecting non-news sources against subpoenas. But state shields offer no protection for journalists in federal court, as the incarceration of Judith Miller - and to some degree Josh Wolf - show.

I talked today with Bruce Johnson, the Seattle-based attorney who drafted the Washington law. He said the addition of Washington to the list of states with reporter's shields is important not just for Washington state reporters but for the drive for a federal privilege for reporters.

Reporters are increasingly being jailed or under threat of jail time when under federal subpoena. Both Judy Miller and Josh Wolf went to jail because they refused to reveal sources to federal judges. The Chronicle's Mark Fainaru-Wada and Lance Williams came close to being jailed but escaped at the last moment. Certainly in the BALCO case and Wolf's case the fact that the proceeding happened in federal court is highly suspect.

"The filing of those cases in federal court was a subterfuge to get around shield laws," Johnson said. "It's an abuse of process to drag cases into federal court that really don't belong there."

"There are two ways to create a federal shield," he said. "Congress can pass a statute, but there have been bills kicking around in the House and Senate for years and Bush opposes them. Or the federal courts can recognize the reporter's privilege as a creation of common law. This second way is quite interesting," he said.

Under Federal Rule of Evidence 501:

[T]he privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

In other words, the federal system doesn't enumerate specific privileges, such as the attorny-client privilege, unlike most states. It's up to the federal courts to decide which privileges will be honored in the federal system. The Supreme Court can look around at the states and decide in one blow that the reporter's shield shall be federal law. It's happened before, Johnson said.

In the 1996 case of Jaffee v Redmond, 518 U.S. 1 (1996), the Court ruled that the psychotherapist-patient privilege existed in federal courts.

That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege. We have previously observed that the policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one. [Citations.] Because state legislatures are fully aware of the need to protect the integrity of the factfinding functions of their courts, the existence of a consensus among the States indicates that "reason and experience" support recognition of the privilege. In addition, given the importance of the patient's understanding that her communications with her therapist will not be publicly disclosed, any State's promise of confidentiality would have little value if the patient were aware that the privilege would not be honored in a federal court. Denial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications.

A long quote, but the sense is clear: the Court is willing to look to the states, find widespread support and create a privilege.

Would the Supreme Court do such a thing? "I don't know," Johnson said. "Scalia and Thomas have actually written some of the most pro-First Amendment decisions. And Alito wrote a pro-First Amendment decision when he was on the Court of Appeals."

Washington's law is much more up to date than California's. It defines "news media" as "any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including ... internet."

So what's an entity? It's a very straight-forward definition. If the organization has some legal status as a corporation or an LLC, etc., it's an entity. If it disseminates "news and information," its' covered. That would include SiliconValleyWatcher as well as the NRA.

While California's shield says nothing about bloggers or the Internet (it was written in the 1970s), this law encompasses publication by any means. It offers a bright line definition who is a journalist. That's a great development.

Still, young Josh Wolf probably would not be covered in Washington, either, since his footage was not done under contract for anyone; it was just his own freelance videography. If he had registered Josh Wolf LLC he probably would have been covered. It's a low bar. Johnson represented Josh Marshall, who set up TalkingPointsMemo as TPM Media LLC for a cool $100.

"At a certain point you to come up with a definition of news media. I think this is a very workable one, although it doesn't cover everyone you might like to see covered," Johnson said.