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Lawmaker files bill to create a reporter’s privilege

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  1. Protecting Sources and Materials

    NMU         TEXAS         Confidentiality/Privilege         Nov 21, 2000    

Lawmaker files bill to create a reporter’s privilege

  • A proposed shield law would allow reporters to refuse to disclose their sources or any information obtained from them unless a criminal defendant can satisfy a high standard to compel disclosure.

State Rep. Henry Cuellar (D-Laredo) filed a bill in the Texas legislature on Nov. 13 that would establish a reporter’s privilege in the state. Texas is one of a minority of states without a journalist’s shield law.

The bill provides that a newsperson has a privilege to refuse to disclose the source of information or any news or information obtained for the purpose of disseminating it to the public, even if that news is not actually disseminated.

The privilege does not apply if the newsperson conceals her status as a reporter from the source or if the newsperson is an eyewitness to an act of physical violence or property damage.

The bill includes a provision allowing criminal defendants to defeat the privilege by showing that either the privilege has been waived or that “there is a reasonable probability that the subpoenaed information is highly relevant, material and critical to the defense, the subpoenaed information cannot be secured from an available source less inhibiting on the free flow of information to the public, the value of the subpoenaed material as it bears on the issue of guilt or innocence outweighs the privilege against disclosure, and the request is not overbroad, oppressive, or unreasonably burdensome.”

As recently as 1995 a reporter’s privilege bill was introduced in the Texas legislature. That bill never emerged from committee after it was watered down and lost support, said Phil Berkebile, executive vice president of the Texas Daily Newspaper Association.

Under a holding of the Court of Criminal Appeals — the highest criminal court in Texas — there is no recognized reporter’s privilege in criminal cases. However, courts have recognized a limited, qualified privilege for journalists in civil cases. Consequently, journalists have been reluctant to jeopardize the protections already afforded them in civil cases by dealing with the legislature for criminal subpoena protections.

The new act does not mention civil cases, but calls the privilege “absolute” with the exception of the separate procedure for criminal cases.

Berkebile said he expects that the new bill also will receive little support and will die in committee.

Interest in a Texas shield law has been keen since CBS producer Mary Mapes agreed last year, in order to avoid behind jailed for contempt of court, to turn over transcripts of a “60 Minutes II” interview with a man accused of murdering a black man by dragging him behind a pick-up truck.

(Tex. H.B. No. 54) DB

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