Note: This page covers information specific to Washington. See the section on Protecting Sources and Source Material for more general information.
Washington state has a shield law that protects the identity of confidential sources and other materials collected or prepared in the newsgathering process, such as notes and outtakes. The state legislature adopted the shield law in 2007, and no courts have applied it yet, so so many of its provisions are open to interpretation. However, some preliminary guidance is possible. First, the law protects anyone who runs or works in a news-related capacity for an "entity" (more below) that regularly provides news to the public, including through any kind of online media. Second, the shield's protection is qualified, meaning that a court may order you to disclose protected information if the information is unavailable elsewhere and there is a compelling public interest in disclosure.
Before the state legislature adopted the new shield law, Washington state courts recognized a common law (i.e., judge-made) privilege for reporters. Typically, when a legislature passes a specific law on a topic, such as a privilege for reporters, courts often say that the new statute takes the place of the common law on that topic and strips it of its force as law. While no court in Washington has said so, it seems unlikely that Washington courts will continue to recognize a common law privilege now that a shield law is in place. For more information on Washington's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Washington.
Washington state courts do not universally recognize a "reporter's privilege" based on the First Amendment to the U.S. Constitution or the Washington Constitution. One unpublished appellate court decision, issued prior to the passage of the shield law, hinted that a privilege under the First Amendment might exist. If Washington courts were to recognize a constitutional protection for reporters, that protection would exist in addition to the protections given by the shield law, and it probably would function like the reporter's privilege recognized by the federal courts in Washington.
Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Source and Statutory Text
Washington's shield law, located at Wash. Rev. Code § 5.68.010, states in relevant part:
(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.
. . .
(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 entity that is in the regular business of news gathering and 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 an employee, agent, or independent contractor of any entity listed in (a) of this subsection, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity; 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.
Who is Protected?
The language of Washington's shield law is extremely broad. It covers the "news media," defined as
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 entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.
It also covers any "employee, agent, or independent contractor" who is working (or has worked) for one of these entities. While no Washington court has interpreted this language, it clearly applies to online publishing. This would cover owners, employees, freelancers, and (most likely) volunteers for one of these entities.
A harder question is whether your website or blog qualifies as an "entity" that distributes news or information on a regular basis. If you publish only sporadically, then you likely fall outside the protection of the statute. More troubling, the meaning of "entity" is uncertain. The statute does not specifically require the entity to be formally organized, like a like a corporation, LLC, or nonprofit organization. But whether a court might read in such a requirement is less clear. Arguably, "entity" could refer to any platform for disseminating news or information, including a solo blog or website. Nevertheless, if you are operating in Washington, one of the benefits of creating a formal business entity would be increased certainty about coverage under the shield law.
What Information is Protected?
The Washington shield law protects confidential sources and any information collected "for potential communication to the public." This latter category would include unpublished materials, whether confidential or non-confidential, collected during your newsgathering activities.
By publishing information received from a confidential source or obtained during newsgathering, you do not waive (i.e., give up) the protection for the source or other, unpublished materials.
The shield law does not protect physical evidence of a crime.
How Strong is the Protection?
Washington's shield law is qualified, which means that a court may order you to disclose information under certain circumstances, even when you are covered by the statute (above). Specifically, a court will order you to reveal protected information if the party seeking your information can prove the following things by clear and convincing evidence:
- The person seeking the information has a reasonable chance of succeeding in his/her case, even without the information sought;
- The information is highly material (i.e., legally significant) and relevant;
- The information is critical or necessary to the maintenance of the person's claim, defense, or proof;
- The person seeking the information has exhausted all reasonable and available means to obtain it from alternative sources; and
- There is a compelling public interest in disclosure -- on this factor, a court may consider whether or not the information was obtained from a confidential source in evaluating the public interest in disclosure.
The same test applies in criminal and civil cases, and when the reporter is a party to the lawsuit in question. As a practical matter, however, the final factor ("compelling public interest in disclosure") will often weigh in favor of your disclosing information when the party seeking information is a criminal defendant trying to mount a defense. This factor will also weigh in favor of disclosure when your information is not confidential (i.e., not received in exchange for a promise of confidentiality).
Constitutional Protection in Federal Court
Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.
The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.
Privacy Protection Act
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.