Washington Shield Law for Journalists?

Washington is not one of the states that has a shield law in its statutes (i.e., in the Revised Code of Washington or the RCW’s). However, the Washington constitution provides some protection for journalists. In particular, Article I, Section 5, titled Freedom of Speech, states in relevant part that “[e]very person may freely speak, write and publish on all subjects” and states that everyone is “responsible for the abuse of that right.”

At least one Washington court has suggested that this constitutionally explicit protection of the right to “write” in addition to the right to “publish” suggests an intention to create a broader right than is available under the First Amendment of the U.S. Constitution. See State v. Rinaldo, 36 Wn. App. 86, 91-102, 673 P.2d 614 (1983), aff’d on other grounds, 102 Wn.2d 749, 689 P.2d 392 (1984).

Otherwise, there is scant Washington case law on the topic. One court recognized, without discussion, that a journalist had a First Amendment privilege to resist disclosure of interview notes pursuant to a subpoena duces tecum. This case was In the matter of the request of: Plaintiffs Alfredo Azula et al., 29 Med. L. Rptr. 1414 (Wash. App. 2001). The court stated that where “disclosure of evidence is opposed on the basis of a privilege, an in camera review is the only way a court can determine whether a document is exempt from disclosure or sufficiently relevant” to merit disclosure.

In summary, the principle for protecting journalists is based on the First Amendment. This principle can trump the obligations imposed by the civil discovery process. In one state court case, the Washington Supreme Court recognized that a First Amendment privilege may be interposed to resist civil discovery requests. Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990). This case involved a political party’s refusal to name members and donors. This case suggests that a journalist’s privilege can be rooted in a broader First Amendment context in appropriate circumstances.

A more orderly analysis of this topic is provided by the Reporters Committee for Freedom of the Press and in the Guide to Journalist Shield Laws by Meghan Martin and Larry Larsen.