By Kenneth F. Bunting
Seattle Post-Intelligencer
Oct. 07, 2005
Excerpt:
The Miller saga has brought scant mention of national
shield law proposals by Sens. Richard Lugar, R-Ind., and Christopher
Dodd, D-Conn., and Reps. Mike Pence, R-Ind., and Rick Boucher, D-Va.Although national security exceptions are being proposed and debated,
those attempts at a legislative definition of a reporter’s privilege,
now stalled in committees of the House and Senate, are essentially
modeled after voluntary Justice Department guidelines in place for more
than 30 years.Under those guidelines, subpoenas over a reporter’s sources or
information about the news-gathering process are appropriate when the
information is vitally important and unavailable from other sources.
The information’s importance to the administration of justice must
clearly outweigh the strong policy mandates for a free independent
press unfettered by government interference.Unlike the close federal ruling that went the other way, the Washington
Supreme Court has since 1982 recognized a qualified reporter’s
privilege that essentially follows those same guidelines, with some
variation. Still, state legislators will be asked to codify, and
perhaps strengthen, that privilege when they meet next year. State
Attorney General Rob McKenna, who has championed open government issues
since taking office this year, said he’ll try to persuade legislators
to pass a shield law in the next session.Thirty-one states and the District of Columbia have statutory shield
laws to keep reporters from being routinely hauled into court or before
grand juries. Other states, such as Washington, have limited
protections that grow out of case law interpreting state constitutions
or common-law policies.The importance of McKenna’s effort should not be underestimated. The
U.S. Supreme Court’s decision to simply let stand the appellate ruling
in the Plame case has left the law confused and inconsistent in
different areas.While Washington state judges have consistently recognized a privilege,
and some federal judges in this region have, too, the problem with
common-law privileges is they are subject to the whims and
interpretations of individual judges.“We can’t depend on that,” said McKenna. “Not only do I think it would
be a good idea to codify the common-law reporter’s privilege, we are in
the process of writing a bill.”The policy issues at stake are not as sexy nor as politically tinged as
the hoopla over Miller and the White House leak. Still, we’ll all be
better served when the discourse moves in that direction.
