Note: This page covers information specific to Texas. See the section on Protecting Sources and Source Material for more general information.
Texas enacted a reporters' shield law in May 2009 that might protect your sources as well as any information gathered through your reporting. The law provides for a qualified privilege, which means that a court may order you to reveal protected information, even if you qualify as a "journalist" under the shield law. The shield law privilege is strongest when information is sought in civil cases; the law offers less protection when information is sought in criminal cases.
Federal courts in the Fifth Circuit, which encompasses Texas, recognize a reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of confidential sources. It is a qualified privilege, meaning that a court may order you to reveal protected information under certain circumstances, even if you qualify as a "reporter" for purposes of the privilege.
In addition, the Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Texas' shield law states in relevant part:
(2) "Journalist" means a person, including a parent, subsidiary, division, or affiliate of a person, who for a substantial portion of the person's livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider . . .
(3) "News medium" means a newspaper, magazine or periodical . . . or Internet company or provider . . . that disseminates news or information to the public by any means, including: . . .
(F) electronic; and
(G) other means, known or unknown, that are accessible to the public. . .
Tex. Civ. Prac. & Rem. Code § 22.021
(a) A judicial, legislative, administrative, or other body with the authority to issue a subpoena or other compulsory process may not compel a journalist to testify regarding or to produce or disclose in an official proceeding:
(1) [A]ny confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist or
(2) [T]he source of any information, document, or item described by Subdivision (1).
(b) A subpoena or other compulsory process may not compel the parent, subsidiary, division, or affiliate of a communication service provider or news medium to disclose the information, documents, or items or the source of any information, documents, or items that are privileged from disclosure under Subsection (a).
Who is Covered?
Texas' shield law protects journalists, including those who publish content online, but the law might not protect purely amateur reporters.
The statute defines "journalist" relatively broadly. In addition to writers, the statute also covers those who edit, compile, photograph, investigate or publish news or information that is disseminated by a "news medium." A "news medium" includes an "Internet company or provider . . . that disseminates news or information to the public by any means." This suggests that many online publishers might be protected under the statute even if not part of the "mainstream media."
However, one limitation on who is considered a journalist under the statute could leave many web-based reporters unprotected. The statute limits the term "journalist" to one who reports or gathers news "for a substantial portion" of his/her livelihood or for "substantial financial gain." Although the statute does not specify what constitutes substantial financial gain or a substantial portion of one's livelihood, it seems likely that casual bloggers and other amateur publishers who derive little or no income from their work would be excluded.
What Information is Protected?
Texas' shield law protects any confidential or nonconfidential information obtained or prepared while acting as a journalist, as well as the sources of any such information. In addition, publication of any privileged information is not a waiver of the journalist's privilege.
How Strong is the Protection?
Texas' shield law provides a qualified privilege, which means journalists may be compelled to reveal their sources or other information under certain circumstances. The strength of the privilege depends on the nature of the case:
Civil: In a civil case, the party attempting to compel the disclosure can overcome the privilege only by showing all of the following in court:
- All reasonable efforts have been exhausted to obtain the information from alternative sources;
- The subpoena is not "overbroad, unreasonable, or oppressive;"
- Reasonable and timely notice was given of the demand for the information;
- The interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
- The subpoena or compulsory process is not being used to obtain nonessential or speculative information; and
- The information is relevant to the proper administration of the official proceeding for which the information is sought and is essential to the maintenance of a claim or defense of the person seeking the information
Criminal: In criminal cases, the privilege does not extend to published information. Journalists may be compelled to disclose or testify regarding unpublished information obtained or created while gathering news, if the person seeking the unpublished information shows that:
- All reasonable efforts have been exhausted to obtain the information from alternative sources; and
- The unpublished information is essential to the case or is central to the investigation of a criminal case
Furthermore, journalists can be compelled to reveal their confidential sources if the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Disclosure may also be compelled if all other means of obtaining the source's identity have been exhausted and if the source:
- Was seen by the journalist committing a felony;
- Is a person who admitted to the journalist that he committed a felony; or
- Is a person for whom probable cause exists that the person participated in a felony
Constitutional Protection in Federal Court
Federal courts in the Fifth Circuit, which encompasses Texas, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of confidential sources and possibly to non-confidential information collected during newsgathering.
Who is Covered?
The privilege clearly applies to traditional "reporters," like those working full or part-time for a newspaper or television news program, but the law is not clear on whether it applies to amateur and non-traditionalists journalists or others who publish information online. Texas courts have indicated that the privilege applies to freelance writers, but not to freelancers who publish only informally and sporadically.
What Information is Protected?
The reporter's privilege clearly applies to the identity of confidential sources, but whether it protects other non-confidential information is less certain. When information is sought from a reporter in a criminal case, there is no privilege for non-confidential sources (i.e., sources who did not give information in return for a promise of confidentiality) or other non-confidential information collected during newsgathering. In civil cases, the privilege may apply to non-confidential information, but the law is not clear.
How Strong is the Protection?
The reporter's privilege is qualified, meaning that a court may order you to reveal protected information if it finds that the need to reveal that information outweighs your interest in protecting it. As a practical matter, courts are more inclined to order disclosure when you are a party to the lawsuit in question, or when a criminal defendant seeks information in order to mount a defense.
For more information on the reporter's privilege in the Fifth Circuit, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 5th Circuit.
Privacy Protection Act
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.