The following is from the Jan. 22, 2007, edition of The Dallas Morning News.
The Texas Legislature will consider the issue of reporter privilege during its current session. Backed by a coalition of print and broadcast media groups and freedom of information proponents, identical bills are being proposed in the Senate and House.
The issue is simply this: Should journalists have a right to maintain confidential sources and have at least some protection against subpoenas seeking to compel testimony or the surrender of notes and tapes?
The recent case of Judith Miller and The New York Times served only to distract from the core issue. Ms. Miller refused to tell a grand jury her source for information identifying a CIA operative and served 85 days in detention.
The politics and the bickering were messy. But at stake in the ongoing issue is the independence of the press outlined by the founding fathers, key among them Thomas Jefferson and James Madison.
Our legal system has traditionally recognized a number of confidentiality privileges such as those for attorneys, physicians and the clergy. All of these privileges have their basis in common law and tradition. Not so for reporter privilege.
There is no reporter privilege at the federal level, although 32 states and the District of Columbia have recognized the privilege in the form of shield laws. Texas is not among those states, despite a number of attempts in the last 30 years.
Such a privilege is not popular among some special interest groups, especially lawyers representing and prosecuting criminal defendants. The general population, also, has seemed cool to the idea of reporter privilege. This is no surprise, considering the public's general animosity and distrust of media.
The operative case from the Supreme Court of the United States is Branzburg v. Hayes, decided in 1972. A deeply divided court declined to find a specific reporter privilege based on the First Amendment. However, out of the vigorous dissent by Justice Potter Stewart emerged the beginnings of a qualified privilege. The decision, Justice Stewart wrote, "invites authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government."
Branzburg was a difficult case legally for journalists to make. The reporter, Paul Branzburg of The Courier-Journal of Louisville, Ky., had been a witness to criminal conduct – the making of hashish.
While some hard-liners have insisted that journalists have an absolute privilege, the reasoned approach involves a qualified privilege. A reporter who witnesses crime should testify. Likewise, if a reporter has significant information that is central to a claim before a court and the information can be obtained from no other source, it is reasonable to expect testimony.
This type of qualified privilege is contained in the proposal the Texas Legislature will consider. The draft bill is titled the "Free Flow of Information Act," the same title given pending legislation in Congress that would codify a federal privilege for journalists.
The reference to the free flow of information is to emphasize that media serve the public, especially in providing a forum for disclosing abuses both in government and in the private sector. In order to do this, sources often need anonymity. The same principle is at work in so-called whistle-blower laws.
In Texas, the effort to pass a shield law has often been hindered by lack of agreement among print and electronic media. With recent events and court decisions, new aggressiveness on the part of prosecutors and increasing government secrecy, particularly at the federal level, media reluctance has just about vanished. In Texas, newspapers and broadcasters are making the joint push.
The Reporter's Committee for Freedom of the Press lists some 20 cases in the last 20 years in which reporters have been jailed for not revealing sources. Four of those cases involved reporters from Texas.
The media we have remain far from perfect, but they continue to serve as one of the few realistic checks we have on government and institutions. Even the majority in the Branzburg court agreed that journalists were not without First Amendment rights essential to protecting the news-gathering process.
It is time for Texas to recognize and define those rights.
Tony Pederson is professor and Belo Distinguished Chair in Journalism at Southern Methodist University and a member of the board of directors of the Freedom of Information Foundation of Texas. His e-mail address is firstname.lastname@example.org.
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