A shield law, legislation to protect journalists from giving up their confidential sources and material, is making its way through the Texas State Legislature.
Texas is one of 14 states that do not have a shield law.
This legislation is critical to protecting journalists’ reputations for integrity and the confidentiality of their sources.
State district attorneys argue that shield laws harm their cases, but if whistle-blowers know their identities are not going to stay confidential, they will not come forward and the information they have might never see the light of day.
How would Woodward and Bernstein have broken the news on the Watergate scandal without Deep Throat?
One could argue that this argument does not apply since Mark Felt’s family eventually revealed him as the source years later. However, if Woodward and Bernstein had been forced to give him up at the time of the scandal, his reputation would have been dragged through the mud until any privileged knowledge he had was seen as the ravings of an attention-seeking lunatic.
Then where would we be? Nixon would have certainly been happier.
Without a law protecting journalists and their sources, it will be harder to uncover government and corporate abuses.
The House Judiciary and Civil Jurisprudence Committee approved House Bill 670, and the Senate Jurisprudence Committee approved Senate Bill 915.
The bill is scheduled to go to the Senate for floor action. If ratified, it will award qualified privilege to journalists on issues such as testifying in court, revealing confidential sources and handing over their notes to prosecution in court cases. Because the privilege is qualified, it can be overcome in certain cases. However, a judge will be required to determine whether information in the reporter’s possession and declared essential to criminal or civil trials could be obtained without the reporter.
Prosecutors also receive something out of the bill.
In instances where a journalist was an eyewitness to a crime or when someone’s life depends on confidential source information, journalists will be required to testify in court. It’s a win/win situation.
Currently, journalists and their employers can be subpoenaed for their notes and any information they didn’t use in an article or news report. Prosecutors will issue a subpoena and, unless the journalist wants to serve jail time for contempt or pay a monetary fine, he or she doesn’t have a choice but to hand the materials over to prosecutors. Not only that, the reporter is required to pick up the cost of making copies and delivering the material to the prosecution.
Under the shield law, journalists would have a basis to refuse the subpoena and hand over their notes. Journalists would be protected from them like they are protected from search warrants without probable cause.
Some might argue that journalists already have First Amendment protections, but state courts have not recognized any protection for journalists. Authors and bloggers, unless employed by print or broadcast news entities, are not covered in either of the bills.
Some might argue that the media should do whatever it can to assist in the investigation and trial process.
However, journalists need to stay independent of law enforcement and prosecution. It is their responsibility to report news in an unbiased fashion, and if the prosecution of alleged criminals is added to their responsibilities, they cannot remain unbiased.
The only way to stop the judiciary abuse of journalists’ rights is to enact a shield law.
