Digital Media and Data Privacy Law Blog

As we reported last week, both chambers of the Texas legislature unanimously passed a shield law giving journalists qualified protection from disclosure of their sources and other confidential and non-confidential unpublished information collected as part of their newsgathering activities.  On Thursday, Governor Perry signed the Texas Free Flow of Information Act, H.B. 670, making it law in Texas.  The shield statute became effective immediately, and its enactment makes Texas the 37th state to pass some form of protection for journalists from state-court subpoenas.

Free press and journalist advocacy groups praised the move.   The Executive Director of The Reporters Committee for Freedom of the Press stated that “[p]opular wisdom had it that Texas would never pass a shield law.  It is remarkable that the Texas media, local prosecutors, state legislators and statewide elected officials agreed upon an innovative bill that will ensure information flows to the people of Texas."

Governor Perry issued a statement in which he praised the legislature's efforts in crafting the shield law, describing it as "a complex issue that required thoughtful consideration."  Governor Perry continued, "I am pleased that lawmakers were able to strike a balance between protecting the rights of the people and the press."

One feature of the Texas statute that distinguishes it from some other shield laws is that it treats civil and criminal proceedings differently.  We discussed the privilege in civil proceedings in a prior post.  In criminal proceedings, a party seeking the identity of a confidential source may overcome the privilege if that party makes a clear and specific showing that:

• the journalist observed the source committing a felony and the party seeking the source's identity has exhausted all other alternative sources for the information;
• the source confessed a felony to the journalist and the party seeking the source's identity has exhausted all other alternative sources for the information;
• there is probable cause to believe that the source committed a felony and the party seeking the source's identity has exhausted all other alternative sources for the information; or
• disclosure of the course is reasonably necessary to stop or prevent reasonably certain death or bodily harm.

In criminal proceedings, when the party that issued the subpoena seeks unpublished information gathered by a journalist (as opposed to a confidential source of such information), in order to overcome the privilege the party must make a clear and specific showing that:

1. all reasonable efforts have been exhausted to obtain the information from alternative sources; and
2. the unpublished information, document, or item:

• is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure; or
• is central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime has occurred.

When considering an order to compel the disclosure of such information, the court should consider the following factors:

1. the subpoena is overbroad, unreasonable, or oppressive;
2. reasonable and timely notice was given of the demand for the information, document, or item;
3. in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist; and
4. the subpoena or compulsory process is being used to obtain peripheral, nonessential, or speculative information.