The Reporter's Privilege
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TEXAS [PRECEDING SECTION] · [TEXAS OUTLINE] · [FOLLOWING SECTION]


II. Authority for and source of the right
      A. Shield law statute

Although Texas has never adopted one, several bills have been introduced to the Texas Legislature over the years to enact a comprehensive shield law. All efforts have failed. Most notably, in 1989, 1991, and 1993 a committed push was made to pass a shield law. In each of those three legislative sessions, a bill was proposed and killed because of a bitter dispute between the state broadcasters and print media. The broadcasters have generally been strongly in favor of a shield law in Texas, but the print media's support has wavered. The 1993 effort was the most concerted. In order to bring both broadcast and print media on board, the broadcasters agreed to let the Texas Daily Newspaper Association and the Texas Press Association draft the language of the bill. At the time of the bill's submission, all major Texas media organizations supported it. Unfortunately, though, the strength of the initial bill was diluted early in the legislative process by amendments and modifications. The Texas Daily Newspaper Association and the Texas Press Association subsequently withdrew their support and the bill died.

The arguments against a shield law are all based on two fundamental but flawed notions. The first is that the First Amendment provides all the protection that is necessary. This notion, while reliable in the 1980's and early 1990's, has proven unpredictable because the application of the First Amendment necessarily occurs in courts that are swayed by the prevailing notions of their times. In Texas, the reporter's privilege once flourished under a string of court decisions which found a strong First Amendment-based reporter's privilege. See, e.g., Channel Two Television v. Dickerson, 725 S.W.2d 470 (Tex. App.--Houston [1st Dist.] 1987); Dallas Morning News Co. v. Garcia, 822 S.W.2d 675 (Tex. App.--San Antonio 1991); Lenhart v. Thomas, 944 F. Supp. 525 (S.D. Tex. 1996) (relying on the First Amendment in granting, in part, a non-party reporter's motion to quash). But since as early as 1994, the trend has reversed itself in Texas and in the Fifth Circuit, where the First Amendment-based privilege has been all but extinguished in criminal cases and probably limited in civil cases to confidential sources. The second notion is that a legislatively created privilege will lead to "licensing" of the journalists' trade. Some opponents from within the press also maintain that any shield law passed this term could be limited by amendment the next. The flaw in this reasoning is that a shield law somehow replaces whatever protections exist because of the First Amendment. A shield law offers protection in addition to that afforded by the First Amendment and not instead of it. Therefore, a shield law can only confer more protection than that offered by the First Amendment; it cannot dilute or detract from the scope of First Amendment protection, even if it is narrowed in scope and application by subsequent legislatures.

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