Texas law that protects journalists, anonymous sources working so far, supporters say
By Kelley Shannon Special to the Reporter-News
Published Sunday, March 11, 2012
AUSTIN — Texas’ shield law has protected journalists from testifying in court, prevented TV stations from giving up unaired video and concealed the identity of people commenting anonymously on news websites.
Yet the biggest intended effect for the public good under the nearly 2-year-old law — to create an environment that encourages whistle-blowers to reveal corruption to journalists while keeping their identities secret — is difficult to measure, supporters acknowledge.
It’s impossible to say how many whistle-blowers would have remained silent without the law, known as the Free Flow of Information Act, said media attorney Laura Lee Prather. But she said reporters are more comfortable now because they can tell confidential sources, “Look, it’s safe to talk with me and here’s why, because there’s this law on the books.”
A more quantifiable result of the reporter’s privilege law is the reduction in the number of subpoenas for reporters and newsrooms, said Michael Schneider, director of programs for the Texas Association of Broadcasters.
“Overall, the track record is a very good one. It has done what we’d hoped it would do,” Schneider said. He noted that the law means it’s no longer necessary for a journalist to appear in court to authenticate what appeared in a television report.
Prosecutors and other attorneys who once regularly sought testimony from reporters don’t try it as often or may withdraw a subpoena and seek the information elsewhere because of the shield law, according to all sides.
What hasn’t been tested yet in Texas through the appellate courts is a clash in which a prosecutor’s office contends it absolutely must have the identity of a reporter’s secret source and a journalist steadfastly refuses to reveal it, said Scott Durfee, an assistant district attorney in Harris County.
“That’s the thing that you worry about a little bit,” Durfee said, adding that confidential source standoffs in court were rare anyway. He said his office views seeking a reporter’s confidential source as a “last, last resort.”
If prosecutors find problems with the shield law they will bring them up in future legislative sessions, Durfee said, but he added the law “hasn’t been as bad” as some opponents feared.
Gov. Rick Perry signed the measure in May 2009. That followed marathon meetings to hammer out the details that included news media advocates and prosecutors under the guidance of Rep. Todd Hunter, R-Corpus Christi.
Texas is one of 40 states with a shield law. The Texas law has criminal and civil sections.
In the criminal law section, a journalist can protect a source’s identity unless the reporter witnesses a felony or received a confession to a felony or there is probable cause a felony was committed. If the information cannot be gotten in another way, the reporter can be called to testify.
The reporter also can be forced to identify a source to prevent death or substantial physical harm, according to an analysis of the law by media attorneys Laura Lee Prather and Catherine Robb.
“I think that the balancing test that was struck has worked nicely,” said Prather, who serves as legal counsel for the Texas Press Association and Texas Daily Newspaper Association, is on the board of the Texas Association of Broadcasters and is a past president of the Freedom of Information Foundation of Texas.
The state’s shield law cases so far have been varied.
In Abilene, Houston, Waxahachie and elsewhere, news organizations were allowed to keep confidential the identifying information for people posting anonymous comments on news websites.
A Dallas Morning News reporter was protected from testifying in a civil injunction involving faulty air conditioning at a Pleasant Grove apartment complex.
A Denton Record-Chronicle reporter was not forced to testify as a defense witness in a murder trial.
In Corpus Christi, subpoenas seeking testimony from Corpus Christi Caller-Times and KIII-TV reporters were tossed out in a criminal case about the release of a jail inmate’s information. Another KIII reporter was prevented from testifying about an interview she conducted in a sexual assault case.
But in Dallas County, the district attorney’s office still frequently issues subpoenas for journalists, Prather said. In a recent case, when local TV stations were told to hand over unaired video, three of four stations did. One successfully fought the subpoena using the shield law.
Journalists have long argued that they shouldn’t be used to do the work of law enforcement. In many cases, they say, the shield law is helping to prevent it.
“It’s starting to have a deterrent effect, which is good,” Prather said. “It takes a few years before people become aware of it.
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