Push For A Shield Law: But, Does It Matter?
Vince Leibowitz | Mar 13, 2006 | Comments 1
Once again, media organizations in Texas are working for passage of a so-called “sheild law” which will protect reporters from having to disclose secret sources and other information in court. Similar legislation failed in 2005.
Over the years, I’ve heard a lot of debate from within the media community on sheild laws. In about 2000-2003, consensus among many of my peers was that (at least, in forms legislators were trying to pass one then) they could actually weaken existing constitutional and case law protection for the press. Now days, on a different side of the spectrum, I feel that the constitutional protections of those in the non-mainstream media may be hampered by a sheild law that only includes mainstream newspaper, radio, magazine and television journalists.
If web-based media (and yes, I consider this many other blogs in Texas web-based media; if you were rich enough to own your own printing press and printed your own personal newspaper, how is that different from publishing via the web) isn’t protected under a sheild law, then I think it should be voted down. Until all of the media (mainstream and new-mainstream) is included, it shouldn’t be passed.
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Filed Under: Texas News • Texas Politics
Dear Mr. Vince Leibowitz:
I read with great interest your story on extending shield law protections to online journalists such as yourself. I am sending you a story I wrote in December 2004 about legislation prefiled in the Texas House of Representatives that addressed your concerns. That measure, by Rep. Aaron Peña, D-Edinburg, will be carried by Mr. Peña again next regular session. Please feel free to use portions or all of my story, at no cost to you, either verbatim or in your own posting, if it is of interest you your readers. I would be very appreciative though if you could give my website credit in that posting, and under your US Blogger Must Reads. That would help me out. Regardless, I share your perspectives about the online journalists not getting squeezed out of the shield law protections. Here is my original story:
For Immediate Release: Sunday, December 5, 2004
Peña files legislation defining “journalistsâ€
and creating Texas reporter’s “shield lawâ€
By DAVID A. DIAZ
Legislativemedia@aol.com
A measure filed Friday by Rep. Aaron Peña, D-Edinburg, would establish in Texas a broad definition for “journalist†and provide thousands of Texans, for the first time, the limited right to avoid revealing their unnamed news sources to the government without fear of going to jail for contempt of court.
However, “journalists†would have to disclose any information, document, or item obtained as a result of their eyewitness observation of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.
Although Texas does not have a statutory “shield law,†which would be the result of Peña’s legislation, reporters currently can argue in court that they are protected under the First Amendment, the Texas Constitution, and common law when facing subpoenas to reveal their news sources or give up their research materials.
Peña’s measure would go add this third level of protection for “journalists.â€
In addition, the definition of “journalist†contained in Peña’s proposal is worded broadly enough to include online-journalists, the new wave of writers who are not traditional print and broadcast reporters because they use the internet to make their own brand of news stories and editorials available to the general public.
Peña’s House Bill 188 defines “journalist” as “a person, or an employee, independent contractor, or agent of that person, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination by any news medium.
‘News medium’ means a person who in the ordinary course of business publishes, broadcasts, or otherwise disseminates news by print, television, radio, or other electronic means accessible to the public.’â€
According to the Reporters Committee for Freedom of the Press, none of the 31 states and the District of Columbia which do have reporters shield laws specifically extend those protections to people, known as Web journalists, who generate and create news through the internet.
In Texas, then-Rep. Henry Cuellar, D-Laredo, twice filed legislation to create a reporters “shield law,†but both times, the measures failed, but garnered him substantial news coverage statewide both times.
Cuellar is now the congressman-elect for Laredo.
Peña is sure to also generate significant news coverage on a statewide and national levels with his measure, with the establishment news media predictably expected to rally around his efforts, thus positively increasing his political image in Austin and back home in his legislative district.
He is expected to be opposed by individuals and groups which will contend that a journalist should not have any more rights than the average citizen to be protected from having to testify before the government or during a trial.
In apparent anticipation of the opposition’s objections, Peña’s measure would allow the government or opposing attorneys to make journalists reveal their confidential sources and materials if that information “is relevant and material to the proper administration of the official proceeding for which the testimony or production is sought.â€
Additionally, the “shield law†would not apply if the journalist’s information or confidential source “is essential to the maintenance of a claim or defense of the person seeking the testimony or production,†and when relevant information “cannot be obtained from an alternative source.â€
The rest of his proposed legislation follows:
Sec. 22.012
(3)“’Official proceeding’ means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.
(4) “Public servant’ means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person’s duties:
(A) An officer, employee, or agent of government;
(B) A juror or grand juror;
(C) An arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;
(D) An attorney at law or notary public when
participating in the performance of a governmental function; or
(E) A person who is performing a governmental function under a claim of right although the person is not legally qualified to do so.
(b) Except as provided by Subsection (c), a journalist may not be compelled to disclose in an official proceeding:
(1) Any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist; or
(2) The source of any information, document, or item described by Subdivision (1).
(c): A journalist may be compelled to disclose any information, document, or item obtained while acting as a journalist if the person seeking the testimony or production establishes by a preponderance of the evidence that the testimony or production sought:
(1) is relevant and material to the proper administration of the official proceeding for which the testimony or production is sought;
(2) is essential to the maintenance of a claim or
defense of the person seeking the testimony or production; and
(3) cannot be obtained from alternate sources.
(d) An order to compel testimony or production as to which a journalist has asserted a privilege under this section may be issued only after notice to the journalist and a hearing. The order must include clear and specific findings as to the showing made by the person seeking the testimony or production.
(e) Notwithstanding Subsection (b), a journalist does not have a privilege against disclosure of any information, document, or item obtained as a result of the journalist’s eyewitness observation of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.
SECTION 2. Chapter 38, Code of Criminal Procedure, is amended by adding Article 38.11 to read as follows:
Art. 38.11. JOURNALIST’S TESTIMONIAL PRIVILEGE. Section 22.012, Civil Practice and Remedies Code, applies to a criminal proceeding.
SECTION 3. This Act applies only to a subpoena issued or other attempt made to obtain any information, documents, or items from a journalist on or after the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2005.