A reporters’ “shield” law that had died in the last two legislative sessions was finally passed by the Texas House of Representatives April 30 and sent to Gov. Rick Perry on Monday.
The unanimous votes in the House and Senate came after journalism and freedom of information organizations worked out a compromise with the Texas District and County Attorneys Association, which had opposed the measure in the past.
The shield law would protect journalists and their sources from court orders requiring reporters to reveal those sources. Its purpose is to protect the identity of whistle-blowers, who might not come forward if their names had to be revealed.
The compromise that caused the prosecutors to drop their opposition is that reporters would not be protected from revealing their sources if they were aware the source had committed a felony and efforts to obtain the information through other means had proved fruitless, or if the identity of the source “is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”
Even in those instances, the final decision on whether the prosecution has exhausted other means to find the information and whether the felony or bodily harm conditions are met will be made by a judge other than the one hearing the case.
The law, if it clears the governor’s desk, will make Texas the 37th state, plus the District of Columbia, to enact a shield law. A federal shield law is being considered in Congress.
Katherine Cesinger, a press aide to Perry, was noncommittal on what action the governor might take on the bill. “Throughout the process, the governor had hoped the legislature would come up with a reasonable compromise that protects the rights of the press and the people,” Cesinger said. “He will take action … after reviewing the bill in its final form.” The unanimous floor votes mean that legislators in both houses have far more than the two-thirds majority vote needed to override a veto.
Journalists used to rely for protection from subpoenas solely on the First Amendment to the U. S. Constitution, which provides that “Congress shall make no law … abridging the freedom of speech or of the press … .” But in the last few decades, judges have increasingly ruled that the courts’ need for the information trumps journalists’ ability to protect their sources’ identities.
The Texas effort to enact a shield law has been going on since the 1970s. Four years ago, the senate sponsor of the legislation – Sen. Rodney Ellis of Houston – pulled his bill after it had been watered down. Two years ago, a similar measure passed the Senate but was killed by a point of order in the House during the legislative session’s final week. The lead House sponsor this year was Rep. Trey Martinez Fischer, a San Antonio Democrat.
Ellis was ecstatic. “After four years of sometimes intense debate, both the House and Senate have agreed on the principle that the press plays a vitally important role in our democracy and must be protected from government intimidation,” he said. “With the face of journalism and law enforcement rapidly changing in the 21st century, it is time for Texas to pass the Free Flow of Information Act to ensure journalists and their sources are protected in their jobs of keeping the public informed.”
House Bill 670, Ellis said, “strikes the delicate balance between preserving the public’s right to know the truth from an independent press and the state’s ability to uphold justice. It ensures journalists can keep their sources and notes confidential, while still allowing law enforcement the ability to acquire truly necessary material. It is not an unbreakable shield, but simply a limited privilege for journalists to protect the confidentiality of their sources.”
The bill does not protect bloggers. It defines journalists as people who make a substantial portion of their living by reporting, editing, or otherwise participating in dissemination of news.
The bill also seeks to discourage prosecutors and others from going on fishing expeditions or harassing journalists, by requiring that the party that issues a subpoena “shall pay a journalist a reasonable fee for the journalist’s time and costs incurred” in proving the information being sought.
Ironically, just as the protection is being approved, the number of journalists it protects is steadily dropping, as the news industry, and newspapers in particular, are in crisis due to the combination of the internet and the economy.
On the other hand, financially weaker news organizations have less money to throw at lawyers these days, which would make the act even more appreciated by those who have been faced with the choice between protecting a source’s identity and spending time in jail or paying potentially ruinous fines.
Veteran Texas journalist Dave McNeely can be contacted at firstname.lastname@example.org.