Social Movements & Civic Participation
Journalists and Attorneys Debate Shield Law
By Scott O. Shaffer
Nov 27, 2005, 11:40

Improving access to federal government secrets is a higher priority for Texas journalists than passing a shield law, according to editors and civil rights attorneys meeting in mid-November in Houston.

“This [Bush] administration has spent $7 billion dollars annually classifying documents. It has classified more documents than all the previous administrations combined,” said Joel White, current president of the Texas Freedom of Information Foundation and attorney with Ogden, Gibson, White, Broocks & Longria.

Panelists meeting at the Houston chapter of the Society of Professional Journalists agreed that state government has not followed the federal example in hiding more and more information.

The panel also cautioned against the relatively laissez -faire attitude among Texas editors and reporters towards shield law protections, noting the recent federal attacks on the First Amendment. The panelists urged local media companies to develop clearly stated policies to help protect reporters and their sources during these uncertain times.

Current state penalties for failing to provide court-ordered documents and work products can be severe. In Texas, as punishment for contempt of court, reporters can be jailed for as long as six months, according to Jefferey Nobles, attorney with Beirne, Maynard & Parsons, L.L.P.

Courts can send reporters to jail for an indefinite period of time to coerce a reporter to disclose notes or information. “Theoretically, it could be life,” Nobles said.

Nobles said reporters have limited protections for their sources and notes, files and tape recordings. In Texas, reporters have more protections in state civil matters than in criminal cases, he said. In federal courts, protections in criminal and civil cases are virtually non-existent.

Panelists recommended that news organizations establish a written policy about destroying story materials or notebooks to protect sources or to avoid going to jail.

White from the Freedom of Information Foundation said, “If a reporter destroys notes and tapes before receiving a subpoena, and if the reporter has been following the same policy consistently over time, then the reporter is probably protected.”

However, the statute of limitations on libel is one year, so White suggested that keeping story notes and tapes is probably a good policy for most news organizations.

During the 79th Legislature, state lawmakers failed to pass a shield law by one vote. The effort failed, according to White, because editors and reporters failed to mobilize in favor of the proposed law that would have generally created a qualified privilege for journalists not to testify in civil or criminal cases.

Steve Jetton, assistant managing editor of the Houston Chronicle, added that significant opposition to the state shield law proposal came from the state district attorneys association. They contended that prosecutions would be more difficult if reporters had a shield law.

Margaret Downing, editor of the Houston Press, recalled, “Only two [people] in a room full of managing editors attending a Texas Associated Press convention in the early ‘90s raised their hands when asked who supported a state shield law.”

Panelists described editors and reporters in Texas as more concerned that the legislature would pass a bad law and makes things worse rather than better. The journalists on the panel expressed the prevailing attitude about a state shield law among their colleagues: “We have prevailed in the past and will prevail in the future. ... Why risk it.”

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