Texas legislator introduces reporter shield bill

Tuesday, December 5, 2000
Texas state Rep. Henry Cuellar, D-Laredo.

The media in Texas would have a “newsperson’s privilege” to prevent
them from becoming investigatory arms for parties in criminal cases if state Rep.
Henry Cuellar has his way.

Cuellar, an attorney, introduced House Bill 54 recently for the
upcoming 2001 session, which is scheduled to begin Jan. 9.

The measure provides that “compelling a person to disclose a source of
information or disclose gathered information is contrary to the public interest
and inhibits the free flow of information to the public.”

The bill establishes detailed procedures as to when materials in a
journalist’s possession can be obtained via a subpoena.

Under the measure, the party seeking a subpoena would have to show by
“clear and convincing evidence” that:

“There is a reasonable probability that the subpoenaed
information is highly relevant, material and critical to the defense.”

“The subpoenaed information cannot be secured from an
available source less inhibiting on the free flow of information to the

“The value of the subpoenaed material as it bears on the issue
of guilt or innocence outweighs the privilege against disclosure.”

“The request is not overbroad, oppressive or unreasonably

“My simple purpose in introducing this bill was to provide protection
for the media,” Cuellar said. “We’ve had several situations all throughout
Texas where reporters have been placed in the difficult situation of having to
reveal their sources or go to jail.”

Cuellar mentioned the plight of CBS producer Mary Mapes, who last year
agreed to turn over
transcripts of a “60 Minutes II” interview in order to avoid being jailed.
Prosecutors had sought a complete transcript and an unedited videotape of an
interview between anchor Dan Rather and dragging-death suspect Shawn Allen

“Without a doubt it is better to have a state shield law on the
books,” Cuellar said. “It sets out detailed procedures as to when the privilege
applies and when it does not apply. It will give the media more

However, it is far from certain whether Cuellar’s bill will garner
support from some press groups in the state.

Donnis Baggett, chairman of the legislative advisory committee for the
Texas Daily Newspaper Association and the Texas Press Association, says that in
the past the groups have not supported the push for a state shield law.

“We have never strongly supported a shield law because it is our
feeling that the First Amendment is the best shield law that there is,” Baggett
said. “Anytime that a piece of legislation grants protection to journalists,
you have to define what is a journalist and what is a legitimate publication,
and these are slippery slopes.

“The government should not be in the business of determining who has
the special privilege to gather and disseminate information,” he said.

Baggett said that the committee will hold its first meeting on the
bill Dec. 7.

Some media leaders appear to support the measure.
The Dallas Morning News wrote in a Nov. 15 editorial:
“The public would benefit if people knew their words to a reporter would not
become part of a legal proceeding. And journalists could know they had the
freedom to pursue stories that gave their readers more information.”

Lucy Dalglish, executive director of the Reporters Committee for
Freedom of the Press, said that 30 states now have shield laws. “As a lawyer, I
would always prefer to have a statute I could rely (on),” she said. “If someone
serves you with a subpoena, you can pull out a statute and many times make it
go away.

“Unless you have a crystal-clear precedent protecting newspersons
under the First Amendment, I think you need a shield law,” Dalglish said. “I
think that the states that have shield laws have clearer protection.”

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