A guide to the new “media shield” law and what it means for Texas prosecutors
On May 13, 2009, Governor Rick Perry signed House Bill 670, making Texas the 37th state to enact a media shield law, and with his signature the bill became effective immediately. It has already been used in several counties in an attempt to quash subpoenas and no doubt it will crop up more and more in the future. It is my hope that this article will inform prosecutors about the law and help them navigate these new waters.
How we got here
Beginning in 2005, media representatives proposed a journalist shield law that most prosecutors viewed as overbroad and unnecessary. Depending on how one counted the various factors imposed under those bills, there were as many as 13 hurdles for the State to overcome before certain evidence could be used at trial. If that version of the bill had become law, prosecutors would not have been able to subpoena published newspaper articles or broadcast videotape, much less a reporter’s unpublished notes or never-broadcast raw video footage essential to our cases. What the media touted as a shield, we saw as a sword that could be used to slay proper subpoena requests. This possibility worried many prosecutors, but after a previous version of the so-called Free Flow of Information Act came within a whisker of passing the Legislature in 2007, several prosecutors committed to finding a suitable compromise in 2009.
During the most recent legislative session, the media did an excellent job framing the debate as protecting confidential sources and whistleblowers from overzealous prosecutors, placing prosecutors in the defensive posture of explaining their legitimate concerns to legislators. Despite claims to the contrary, most prosecutors never argued with the concept of protecting confidential sources; they were more concerned with other provisions of the proposed law. For the prosecutors who volunteered to work on this issue at the Legislature, compromising on the confidential source protection—which was rarely (if ever) sought by the State to begin with—became a negotiating chip in the battle over access to published and unpublished non-confidential material. Ultimately, after many hours of negotiation—both public and private—between prosecutors, media representatives, and legislators, the final version of HB 670 reflects the fruits of that hard labor. The law creates separate tests for civil and criminal cases and goes no farther than necessary to shield confidential sources from unnecessary intrusion, yet it still permits prosecutors access to the evidence they need in court. A review of the law’s most important changes follows.
Criminal vs. civil privilege
One of the most important parts of the bill as it ultimately passed was the creation of separate standards for criminal and civil cases. The definitions for the criminal and civil statutes are essentially the same, with one exception: the definition of “public servant” in the criminal statute includes “grand juror,” so there is no question that the new law allows a journalist to assert this privilege against disclosure in response to a summons from the grand jury.
The most significant definition is that of “journalist,” which requires that a substantial portion of the person’s livelihood or a substantial financial gain is derived from gathering, compiling, preparing, collecting, photographing, recording, writing, editing, reporting, investigating, processing, or publishing news or information disseminated by a news medium or communication service provider. Accordingly, most independent bloggers or students do not qualify for protection under this bill, though it does cover both television and newspaper employees.
The civil privilege is codified in Civil Practices and Remedies Code Chapter 22, Subchapter C. Under its framework, the civil shield law first requires notice and an opportunity for the journalist to be heard. The new law does not specify what is required for the notice or what is meant by an opportunity to be heard; therefore, this area could be ripe for litigation. The party requesting the information must then make a clear and specific showing that:
1) all reasonable efforts to obtain the information have been ex-hausted;
2) the subpoena is not overbroad, unreasonable, or oppressive;
3) when appropriate, it will be limited to the verification and accuracy of the published information;
4) notice to the journalist is reasonable and timely;
5) the interest of the party subpoenaing the information outweighs the public interest in gathering and disseminating the news (including the concerns of the journalist);
6) the subpoena is not being used to obtain peripheral, nonessential, or speculative information;
7) the information, document, or item is relevant and material; and
8) the information, document, or item is essential to the maintenance of a claim or defense.
This test is required whether the information sought is the name of a confidential source or a copy of a news broadcast. The new civil statute also states that publication or dissemination of the information does not waive the privilege.
The criminal privilege is codified in Code of Criminal Procedure Article 38.11. In contrast to the new civil privilege, it has separate requirements depending on the information sought. It is divided into three main sections: §4 deals with confidential sources, §5 concerns unpublished information and non-confidential sources, and §8 is about published information. Although the statute applies to information re-quested by both the prosecution and defense, we will discuss each in greater detail in the context of requests by the State.
Section 4 of new Article 38.11 gives journalists an almost absolute privilege against revealing the identity of a confidential source in the prosecution of misdemeanors and some felonies. However, the privilege can be pierced with any of four exceptions, all of which require a clear and specific1 showing by the prosecution that the prosecutor has exhausted reasonable efforts to obtain the confidential source from alternative sources.
The main exception is if the prosecutor makes a clear and specific showing that disclosure of the confidential source is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.2
Another exception allows a court to compel a journalist to testify or disclose a confidential source if the prosecution shows one of these three things: 1) the journalist observed the confidential source committing a felony, 2) the confidential source confessed or admitted to the journalist the commission of a felony, or 3) probable cause exists that the source participated in a felony.3
A third exception covers situations where the secrecy of the grand jury has been violated. A journalist can be compelled to testify or disclose a confidential source if the information, document, or item obtained by the journalist was disclosed or received in violation of a grand jury oath. If there is a motion to quash the testimony, production, or disclosure of the information, document, or item concerning grand jury violations, then the statute gives the court discretion to conduct an in camera hearing.4
The last exception applies when the alleged criminal conduct is the act of communicating, receiving, or possessing the information, document, or item.5 Under this scenario there is a lesser test, the same one for obtaining “unpublished” information, which is discussed later in this article.
To pierce the privilege for confidential sources, §4 also requires the elected prosecutor to sign the subpoena, although in the elected prosecutor’s absence from the jurisdiction, the highest ranking assistant can sign.6 Be aware that the media’s principal lobbyist believes that this requirement applies to all subpoenas, but we respectfully disagree for several reasons. First, §8 states that nothing in Article 38.11 applies to published information; therefore, this signature requirement will not apply to a subpoena requesting published or broadcasted information. Moreover, if the legislative intent was to require that all media subpoenas be signed by the elected district or county attorney, lawmakers could have changed those actual articles to so indicate. Or, for the signature requirement to apply to both confidential and non-confidential sources and published and unpublished information, the requirement could been have placed in its own section applicable to the entire article. Because this signature requirement is located only in the section dealing with confidential sources, it should apply only when obtaining information regarding the identity of a confidential source.
Unpublished information or non-confidential sources
Section 5 provides journalists a qualified privilege for unpublished information or non-confidential sources. After service of a subpoena and an opportunity to be heard, a court can compel a journalist to testify and/or provide notes, raw footage, and other unpublished information in two circumstances: 1) the information is relevant, material, and essential to the maintenance of a claim or defense, or 2) the information is central to the investigation or prosecution of a criminal case and based on something other than the prosecutor’s assertion that there are reasonable grounds to believe a crime has occurred.7 As with previously detailed exceptions, the prosecution must also make a clear and specific showing that one of these circumstances applies and that all reasonable efforts have been exhausted to obtain the information from another source.
The court, when considering whether to compel the journalist to testify or provide the information, should consider whether:
1) the subpoena is overbroad, unreasonable, or oppressive;
2) reasonable and timely notice was given;
3) the State’s interest outweighs the public interest in gathering and disseminating the news; and
4) this process is being used to obtain peripheral, nonessential, or speculative information.8
Section 5 also allows the prosecutor to present other factors when making a decision, so be sure to read it thoroughly.9 In addition, no single factor is determinative in the court’s decision whether to compel the journalist to testify or provide information.10
For an example of how this section might work in the real world, let’s say two TV reporters videotape an interview with a defendant in jail, and he confesses to committing a felony. The local prosecutor seeking the raw footage from the interviews should first request a copy of the published broadcasts from all network stations and decide which station provides the better information. Doing so should demonstrate to the court that the request is reasonable and seeking only relevant material not available from another source. If the TV stations file a motion to quash the subpoena for raw footage, use the published videotape as evidence in the hearing to lay the groundwork for proving a need for the unpublished footage (by showing that the published information is just a small portion of what the overall tape contains and that the jury must see it to get the whole story).
The media might argue in the hearing on the motion to quash that the information is available from another source (and immune from disclosure) because an officer in the interview room heard the confession. Remember that a picture—or in this case a video—is worth a thousand words. The requirement that “reasonable efforts have been exhausted to obtain information from alternative sources” should be for “like evidence.” A police officer talking about what the defendant said to the reporters is not the same as the jury actually seeing the defendant talk to the media—those are two different types of evidence. If, however, law enforcement also taped the interview, then the TV stations will have a good argument for quashing the subpoena.
Another argument for the requestor is that each video is unique and cannot be obtained from an alternative source; therefore, the media outlet that published the story will be the sole source of the unpublished information. Again, the published information will be essential in proving the need for the raw footage.
Note that prosecutors need to move quickly to request broadcasts and subpoena raw footage because television stations often recycle their tapes and delete unused footage within a few weeks. Note too that §9 requires that the requesting party pays the journalist a reasonable fee for the time and costs incurred in providing the information. The fee is limited to the structure provided in the Open Records Act.11 Several district and county attorney’s offices have indicated that they do not charge the media for open records requests, so one would hope that the media will return the courtesy.
Although one of the shortest provisions in the new law, §8 is undoubtedly the most important for prosecutors. Section 8 provides that once a journalist publishes or broadcasts information, documents, or items, Article 38.11 does not apply in the vast majority of cases. Prosecutors can simply subpoena the media outlet as they have always done because §8 expressly states that this new law does not apply to published material. In that event, courts are to use your office’s current procedures in determining whether to grant a journalist’s motion to quash. (For assistance, see “Newsperson’s Privilege” from the March–April 2003 issue of this journal, available online at www.tdcaa.com. Search for “journalist shield.”) To further indicate that the criminal media shield law does not apply to published information, a statement of legislative intent was read on the House floor.12 However, note that §7 states that publication or broadcast does not waive the journalist’s privilege with regard to confidential sources or unpublished information.
Additionally, one of the benefits of the new shield law is that broadcasted recordings are now self-authenticating, so in most cases, prosecutors no longer have to subpoena a journalist to authenticate what everybody knows to be a true and accurate copy of a broadcast story. As long as the footage was obtained from a Federal Commun-ications Commission (FCC)-licen-sed radio or television station,13 the only predicate is to mark the videotape for identification purposes, show opposing counsel, and offer it as evidence.14 However, a videotape classified as self-authenticating can still be objected to on the basis of genuineness, hearsay, best evidence, relevance, or privilege.
With this law now in effect, a Texas TV station has already challenged a subpoena for testimony from a reporter sought for the purposes of entering a broadcast tape into evidence. Because the tape is now self-authenticating, the judge granted the media’s motion to quash the subpoena for the reporter’s testimony. (The tape was still admitted as it had been already broadcast.) In light of this, a best practice when subpoenaing a journalist for the purpose of entering a tape into evidence may be to place him on standby to respond to any potential objections to the tape’s admissibility, with the understanding that he will not take the stand unless the court grants an objection that prevents self-authentication.
Representative Debbie Riddle (R–Houston) stood on the House floor and gave voice to what many prosecutors thought about the concept of a media shield law: “What makes journalists so special that they are in another category? If the pope came to America, the pope would not have the same privileges as these journalists.”15 Nevertheless, we now have a media shield law to deal with in addition to the other roadblocks in our way as we seek the truth and fight for justice in the courtroom.✤
1 Criminal law now has a new burden of proof: “clear and specific.” During the house committee hearing, prosecutors opposed the use of a non-standard burden, but the media stated it is an accepted burden of proof in Texas media privilege cases, citing Channel Two Television Co. v. Dickerson, 725 S.W.2d 470 (Tex. App.—Houston, 1987). Prosecutors should anticipate that the media will be arguing that this new standard is somewhere between “preponderance of the evidence” and “clear and convincing.”
2 Tex. Code Crim. Proc. Art. 38.11(§4)(a)(4).
3 Tex. Code Crim. Proc. Art. 38.11(§4)(a)(1-3).
4 Tex. Code Crim. Proc. Art. 38.11(§4)(c).
5 Tex. Code Crim. Proc. Art. 38.11(§4)(b).
6 Tex. Code Crim. Proc. Art. 38.11(§4)(d).
7 Tex. Code Crim. Proc. Art. 38.11(§5)(a)(1-2).
8 Tex. Code Crim. Proc. Art. 38.11(§5)(b).
9 Tex. Code Crim. Proc. Art. 38.11(5)(b).
10 Tex. Code Crim. Proc. Art. 38.11(§5)(c).
11 Gov’t Code Chapter 552, Subchapter F.
12 A statement of legislative intent was placed in the journal of the House of Representatives on April 2, 2009, when HB 670 was read on third reading and a final record vote was taken. At that time, Chairman Todd Hunter had the following exchange with the author of the bill, Rep. Trey Martinez Fischer:
Chairman Hunter, “…We just want to clarify that published principles are under current law and unpublished principles will be under the new law.”
Rep. Martinez Fischer, “That is my intent.”
To watch a recording of this exchange, go to www.house.state.tx.us/media/chamber/81.htm. The statement is 1:47:24 into the archived House floor proceedings for that day. In addition, the House Resource Organization (HRO) Bill analysis associated with HB 670 will provide valuable insight into the various arguments regarding this bill. The HRO Bill Analysis can be found at www .capital.state.tx.us. Search for HB 670 and the HRO Bill Analysis will be located on the Text tab.
13 The new law authorizes the court to take judicial notice of the recording license. Information concerning a station’s FCC license can be found at the following website: www.fcc.gov/licens-ing.html. Once there, select Universal Licensing System (ULS). Under the Search tab, select Licenses. If you do not know the station’s call sign, FRN, or name, then use the specialized search to look geographically, which allows a search by county.
14 Schlueter, David, et al., Texas Evidentiary Foundations §4-4(A) (2d ed. 1998).
15 Emily Ramshaw, “Texas House OKs law to help journalists protect sources,” The Dallas Morning News, April 2, 2009. Rep. Riddle, who killed the media shield bill in 2007 by raising a successful point of order against it on the House floor, was one of only two Texas legislators to vote against passage of HB 670.