Strengthening the Shield

State Attorney General Rob McKenna stands up for journalism.

You've got to hand it to state Attorney General Rob McKenna, who has emerged as a decisive First Amendment advocate. Early this month, the new Republican AG proposed a shield law to protect journalists from having to reveal confidential sources or information. If passed by the Legislature, the law would be one of the strongest in the nation and would be one positive outcome of the scandalous, ceaselessly debated Judith Miller affair.

Currently, state case law says journalists don't have to testify about confidential information unless certain criteria are met, including proof that the information is central to a case and efforts were made to get it elsewhere. Judges and attorneys aren't always familiar with that case law, though, and reporters routinely get subpoenaed. "An awful lot of reporters have had to hire me or lawyers like me," says Michele Earl-Hubbard, president of the Washington Coalition for Open Government and an attorney with Davis Wright Tremaine (which represents Seattle Weekly). She and others believe expensive legal work could be avoided if there were a statute on the books.

McKenna's proposal goes one step further than case law by granting an absolute privilege for confidential information, subject to no conditions. Of the 31 jurisdictions that have shield laws, only 11 states plus the District of Columbia offer such strong protection. McKenna's bill would also establish a qualified privilege for nonconfidential information. Among the criteria that would have to be met to compel testimony: "a compelling public interest in the disclosure." Says Gregg Leslie, legal defense director of the Virginia-based Reporters Committee for the Freedom of the Press: "We haven't seen that in many states." McKenna stopped short of granting such wide latitude to everybody. Those entitled must earn "a substantial portion of his or her livelihood" from the newsgathering business. Independent bloggers are on their own.

McKenna says he was inspired to act by the Miller case. In May, he joined a number of attorneys general in submitting an amicus brief to the U.S. Supreme Court in support of the recently resigned New York Times reporter who went to jail rather than reveal a source. Miller, ever so cozy with her now indicted source and a gullible voice for the administration's line on weapons of mass destruction, turned out to be an imperfect poster child. But McKenna doesn't think that Beltway intrigue will hurt the bill's chances. In any case, a perfect poster child happened to come along last week. Congressional leaders are calling for an investigation into Washington Post reporter Dana Priest's sources for a story that exposed secret overseas prisons used by the CIA. It's exactly the kind of sourcing a shield law is supposed to protect.

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