Texas Media Shield Law
Up to now Texas has not had a law that protects the right of confidentiality of the press as do 36 other states. Now both the Texas House and Senate Chambers have voted for a new protection called the media shield law which will now go to Governor Rick Perry for signature.
Historically there has always been a conflict between the government and press even though the First Amendment to the U.S. Constitution says
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
Under the new law confidentiality of information and sources held by professional journalists would be protected from ordinary law enforcement inquiry. Information would only be surrendered if a judge found that the information was necessary for the legal purposes of the case and also that prosecutors had no other way to obtain the information. Thus prosecutors could not use journalists as a short cut to investigation.
Advocates for the new law cited the recent case of the Texas Youth Commission as an example of a case where journalism functions for the good of society but must be accorded protections against intimidation. This was the third year in a row that the legislature has tried to pass such a law. The law represents a compromise between district attorneys who complained that no one should be allowed to obstruct investigations and media companies who have spent thousands of dollars defending against subpoenas they felt violated their rights under U.S. Constitution First Amendment -Right to A Free Press. The sponsors of bill, Sen. Rodney Ellis, D-Houston and Rep. Trey Martinez Fischer, D-San Antonio, stated
“the purpose of this legislation is to foster the free flow of information about significant issues of public interest (such as government corruption, corporate malfeasance, et cetera), to preserve a free and active press, while at the same time protecting the right of the public to effective law enforcement and the fair administration of justice.”
In my opinion, the law as written protects the ability of prosecutors to get at the truth and the ability of journalists to function. It is important that prosecutors not use journalism as a their main way of investigating cases for two reasons. First of all the Constitution implies that the press be a separate entity then the government and should not be unduly influenced by government coercion. Conversely, too close a relationship between government law enforcement officials and the press can also allow the press to have too much influence on government investigators such that they could come to rely upon information from the press substantially instead of performing their own investigations. Our community as a whole is better served when there is more than an arms length between government and the press who each separately function totally independently from one another.
The right of reporters to have privilege over sources and information was tested in 2005 when Judith Miller, Matthew Cooper and other reporters initially refused to comply with subpoenas relating to investigation of the illegal exposure of CIA operative Plame. The Federal courts then and as they did in the past never affirmed that there was any absolute right which would allow obstruction of justice.
Legislation at the Federal level to legislate a federal shield law has never passed both houses of Congress but many legal scholars infer that the Constitution does provide relative protections for journalists within limits that do not obstruct justice. However, the United States Department of Justices has guidelines that must be met before federal prosecutors can issue a subpoena to a journalist which are very similar to the newly passed Texas law.
I encourage Governor Perry to sign the bill .
Thanks for reading Contempo Magazine blog which discusses issues for McAllen, the Rio Grande Valley, and America from a conservative Hispanic point of view. Tony Magaña grew up in McAllen Texas, attended Texas A&M University, served as an officer in Army Reserve, and holds a doctorate from Harvard University. The co-founder of Contempo Magazine has participated in Valley business for over 20 years. He is a member of the National Association of Hispanic Journalists and also writes for the American Daily Review
