Texas becomes 37th state to enact a shield law

From the Spring 2009 issue of The News Media & The Law, page 26.

The third time’s a charm — so says one Texas media attorney of the state’s recurring attempts to enact a reporter’s shield law.

The Free Flow of Information Act, HB 670, which will protect journalists in many cases from being compelled to reveal confidential sources or information, was signed by Gov. Rick Perry on May 13 and is effective immediately. The state Senate unanimously passed the bill at the end of April; the House subsequently approved minor changes made by a Senate committee in another unanimous vote.

Though the possibility of a state shield law has hovered for decades in Texas, media attorney Laura Prather said that only in the past few years has the state media come together in favor of it. This year, the united front won a shield law.

“We are thrilled that all the hard work of so many has resulted in the passage of the Free Flow of Information Act in Texas,” Prather said. “This law will make it easier for whistleblowers to come forward and report wrongdoing, and, as a result, it will make Texas a better place to live. This law will benefit all Texans.”

The details

The bill provides a qualified privilege for reporters, meaning that the protections can be overcome under certain circumstances.

In civil cases, the privilege can be overcome if: the subpoenaing party can show that the material cannot be obtained from alternative sources; the subpoena is not overbroad or unreasonable; timely notice was given; the interest of the subpoenaing party “outweighs the public interest in gathering and dissemination of news”; the subpoena is not being served to obtain peripheral or speculative information; and the information sought is relevant and material to the underlying claim. Such considerations are typical in qualified reporter’s privileges in other states, although the “public interest” balancing element is less common and gives journalists greater protections when reporting stories of compelling public interest.

Similar protections apply in criminal cases, although the burden is easier to overcome in cases where the subpoena seeks information about a grand jury leak or a confidential source in a criminal case where the reporter witnessed the source committing a felony, if the source admitted committing a felony to the journalist, if there is probable cause to believe the source committed a felony, or if disclosure is necessary to prevent “reasonably certain death or substantial bodily harm.”

The bill has a broad definition of “journalist” specifically intended to include anyone who gathers or publishes news in any format, including solely on the Internet. However, it does limit coverage to those journalists who writes “for a substantial portion of the person’s livelihood or for substantial financial gain,” which would rule out many Web-based journalists.

Under the Texas Constitution, the bill takes effect immediately after it is signed because it received votes of more than two-thirds of the members of both houses.

From a shaky beginning

The concept of a reporter’s privilege has not always enjoyed uniform support in newsrooms, nationally or in Texas. Prather, an Austin-based lawyer who served as the media’s lead negotiator throughout the legislative process, explained that broadcast journalists there generally approved of a shield law, while print reporters tended to believe that First Amendment protection was sufficient. Some journalists worried that codifying the law might complicate things further, raising the specter of government licensing reporters, for instance.

“It might create unintended consequences,” Prather said. “But that, of course, ignores the fact there are 36 other states that have these kinds of laws on the books,” without such dire results.

Texas Rep. Aaron Pena remembers that hostility well. He introduced reporter’s shield legislation in 2005 — the first in years — and Prather credits him with the recent resurgence of shield law efforts in the statehouse.

Pena said he was surprised when he learned that some journalists were opposed to a measure he viewed as one that would protect them. They may have felt adequately supported by the First Amendment, but Pena, a lawyer, said it had become clearer that journalists could not count on traditionally conservative Texas courts to interpret the constitution in their favor.

Pena himself was motivated to introduce shield legislation after hearing about Jim Taricani, a Providence-based television reporter who refused to divulge the source of a leaked videotape showing an undercover FBI sting operation. Taricani was convicted of criminal contempt in 2004 and was sentenced to six months of house arrest.

Pena said he first assumed Taricani’s situation could not have happened in Texas, figuring that the state had a reporter’s shield law. When he learned that wasn’t the case, he drafted a bill of his own.

It’s just a matter of “good public policy,” Pena said.

But he faced an uphill battle in promoting the legislation, with opponents including some journalists and prosecutors concerned about the bill’s impact on criminal investigations.

Randall Sims, a district attorney for Texas’ Potter County, also took part in the legislative negotiations with media representatives.

And even more recently, despite lawmakers repeatedly voting unanimously in favor of the bill, some legislators had lingering concerns about it.

State Sen. Tommy Williams, for example, proposed an amendment that would have required disclaimers to be attached to published articles and aired broadcasts that used confidential sources. In a disclaimer, the news outlet would acknowledge its use of those unnamed sources, apparently so that the editors and publishers could implicitly back the veracity of the content.

Prather fought that proposal, saying that defamation law already addresses the publication of false information.

“It’s unconstitutional,” she said of Williams’ proposal. “You can’t compel speech like that.”

Williams’ amendment was later withdrawn. A spokeswoman for the senator declined to comment for this story.

Looking at the big picture

Now, 37 states plus the District of Columbia have some form of a reporter’s shield law, protecting journalists from being compelled in court to disclose confidential sources and reporting material.

In the past three years, five states — Connecticut, Washington, Utah, and most recently in 2008, Maine and Hawaii — have passed some form of a shield law (Utah’s privilege was created as a court rule, rather than a legislative act). Washington and Utah adopted absolute versions of the privilege, while the rest, like Texas, have qualified privileges.

In the end, Prather said, what made this a successful year was the bill’s broad, bipartisan appeal and support from non-journalists such as attorneys and even a former state Supreme Court justice.

“We needed people to understand that this is not a media bill,” she said. “This is a citizenry bill.”