80th Legislature: HB 382 Would Enact ‘Sheild Law’

[Editor's Note: If you are a "skimmer" who doesn't read the part of the post below the fold, you should read the part of this post below the fold because it has some good information and historical background.~V.L.]

House Bill 382 by State Rep. Aaron Pena (D-Edinburg) would give Texas journalists the same protection as journalists in 32 other states against being forced to disclose confidential sources and information from any source—whether confidential or not.
Although some, like the District Attorney mentioned over at Grits, doomsay and seem to think a sheild law would destroy the grand jury system, that have been no reported cases I am aware of where a sheild law has prevented the prosecution of any crime or impeded any investigations.

A hearing before the House Judiciary Committee yesterday brought out a wide variety of media witnesses including the station manager from KLTV in Tyler—a station that has been in a position to cover a number of major crime stories in the last couple of years, and one that I understand has been subject to an unusual amount of subpoenas for even material that is essentially left on the cutting room floor:

Brad Streit, general manager of KLTV in the Tyler-Longview area, said subpoenas from law enforcement for the television station’s video can be cumbersome.

“The more frequent and the greater the distraction, the greater the impact” on his newsroom, he said. Many times the station will readily provide material that is publicly aired, but there needs to be protection if a subpoena seeks a reporter’s notes or out-takes, he said.

“It’s our editorial process, and not an outside government agency,” he said.

A very good point.

Support for a sheild law in Texas extends to the higher echelons of the executive branch of state government.

Pena’s office, in a press release announcing the filing of the bill earlier this week, pointed out Texas Attorney General Greg Abbott favors the sheild law and has even filed amicus briefs in support of media protection:

Recently there have been high profile cases involving journalists being held in contempt of court and in some cases being jailed for refusing to reveal confidential information.   The proliferation of illegal steroids in Major League Baseball may not have been exposed if it were not for the work and investigative journalism of two San Francisco area reporters.  Those same reporters now face the possibility of jail time if they don’t reveal the identities of their confidential sources.  Texas Attorney General Greg Abbott joined twenty three other states in filing an amicus brief with the San Francisco federal appeals court on behalf of the reporters.

“A free and open press forms the foundation of a free and open democracy,” said Attorney General Abbott. “Our nation functions best when its citizens can see their government operating in the full light of day.”

Representative Pena applauded Attorney General Abbott’s support on the issue.

“Attorney General Abbott is right on, we don’t need the government putting up impediments to access to information. We have pre-filed this bill so we can begin working with all the stakeholders to help craft legislation that will create a balance between a free press, the public’s right to know and the pursuit of justice.”

When most people think of a “shield law,” they think of the New York Times’ Judith Miller who was jailed in 2005 or Texan Vanessa Legett who was jailed for contempt of court for failing to turn over her notes to a federal grand jury.

According to the First Amendment Center, there are other Texas cases as well which you may be less familiar with. These two are from 1990:

San Antonio television reporter Brian Karem was jailed and ordered to serve six months behind bars for refusing to reveal the names of three confidential sources who helped arrange a telephone interview between Karem and a suspect held in a local jail on charges of killing a police officer. Karem was released 13 days into his sentence when all three sources came forward to identify themselves.

Libby Averyt, a courthouse reporter for the Corpus Christi (Texas) Caller-Times, was charged with contempt of court for refusing to discuss unpublished portions of her jailhouse interview with a defendant who admitted he had killed a local jewelry store clerk. Averyt insisted that the First Amendment and provisions in the Texas Constitution allowed a reporter to keep unpublished information confidential. Averyt was released after spending two days in jail when prosecutors agreed to drop the contempt charges against her.

And this one from 1993:

Felix Sanchez of The Houston Post and James Campbell of the Houston Chronicle were found in contempt of court for refusing to point out in a courtroom the people they had interviewed for stories about a double murder. Both Sanchez and Campbell argued that they had agreed to quote witnesses anonymously for their stories and had not recorded their names. They also said they would be unable to recognize those interviewed months before and claimed the action violated the First Amendment right to freedom of speech. A state district judge ordered both men jailed for 30 days, but they were freed on their own recognizance after a few hours, pending their appeal. On appeal, a federal judge overturned the contempt ruling.

I am sure there are more recent instances as well. The bottom line, however, is that Pena’s bill is legislation very appropriate for our time.

Numerous attempts have been made to pass a shield law in Texas, including attempts in 1989, 1991, 1993 and 2005.

Several sessions back, Congressman Henry Cuellar (then a State Rep from Laredo), led one of the shield law drives.
Those earlier drives (excluding 2005) were notable in that they failed in part because the media was divided over the issue The 1993 effort started with full media support and ended with a schism after the bill was amended and altered. The 2005 law was hamstrung because of opposition from the state’s powerful district attorneys’ lobby.
As for why Texas needs a shield law, it’s because the “common law” version of a “shield law” (grounded in the First Amendment-based reporter’s privilege) was struck down by the Texas Court of Criminal Appeals in the 1990s. The Reporter’s Committee for Freedom of the Press has more on that:

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.

One other thing is important to note about Pena’s bill. While I’m no constitutional scholar or expert in legislative drafting, as I read the bill, the vast majority of bloggers functioning as citizen journalists would be covered by the new shield law.

Whether that is deliberate on the part of one of the state’s most blog-savvy legislatures or not, I don’t know. Either way, though, this is a bill the blogsphere should be behind.

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