Broadcasters testify in support of third-party allegation protection bill

posted on 3.03.2015

Broadcasters spoke in favor of a TAB backed bill Monday meant to address a disastrous 2013 Texas Supreme Court ruling, Neely v. Wilson, that impedes the ability of journalists to conduct investigative reports based on third party allegations – even those made by a regulatory body. 

The Texas Supreme Ct.’s 2013 Neely decision called into question nearly 25 years of case law. 

The Senate State Affairs Committee took testimony on SB 627 by Sen. Joan Huffman, R-Houston, which is part of TAB’s 2015 newsroom legislative agenda.  Huffman chairs the committee.  

“This kind of journalism is a vital watch-dog function that directly benefits the public and often leads to legislative reform and criminal prosecution,” TAB President Oscar Rodriguez told the committee.

He was joined by three veteran Texas broadcast reporters who detailed their own specific story examples that relied on whistleblower allegations – Jaie Avila, WOAI-TV San Antonio; Greg Groogan, KRIV-TV Houston; and Becky Oliver, KDFW-TV Dallas-Ft. Worth.  

All three discussed how their original reporting led to legislative or regulatory reforms and in some cases, criminal prosecutions.  

Also testifying on behalf of the legislation were representatives of the Texas newspaper industry, as well as media law attorneys Paul Watler of Jackson Walker LLP Dallas and Laura Prather of Haynes & Boone LLP Austin. Jackson Walker is TAB’s general counsel. Prather drafted SB 627’s bill language for TAB and the Texas Press Association. She also is a member of TAB’s Newsroom Legislative Committee.

While the committee was clearly supportive of the efforts of journalists to use whistleblower information to benefit communities, individual members expressed concerns about the bill’s language which some termed “very broad.”   Some worried aloud about the potential for bloggers to use the proposed law for malicious intent.  

Opposition testimony came from attorneys representing the Texas Trial Lawyers Association who erroneously claimed the proposed legislation created absolute immunity for journalists from legal action.

The bill was left pending to allow bill language negotiations. If an agreement is reached on bill language, the measure could potentially move out of the committee as early as next week.

Texas courts have long recognized protection of media reports on third party allegations brought by whistleblowers, whether an investigation had begun or not. Media defendants had to prove that the underlying claims were, in fact, made and accurately reported.

Absent this protection, media reports on matters of public concern are threatened. If sued, media defendants can depend only on the substantial truth defense if the underlying accusations in the report are ultimately found accurate by an investigation. 

Delays in beginning a formal investigation and lack of clarity in determining when an investigation is “closed” further complicate the process while leaving journalists vulnerable to litigation.

Most investigative reporting relies on third party allegations or “whistleblowers.” Recent high profile examples include VA medical care, 21CT contract, CPRIT grants, Medicaid fraud, and the Texas Youth Commission.  

SB 627/HB 1766 would amend the Civil Practice and Remedies Code under Section 73.002 to create a privilege for "publication of allegations made by a third party regarding matters of public concern, regardless of the truth or falsity of the allegations". 

The key is that it must be a matter of public concern. Malicious idle gossip would not be protected. 

“Matters of public concern” is defined in Texas Civil Practice and Remedies Code, Sec. 27.001, as an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace.”

Questions?  Contact TAB’s Michael Schneider or call (512) 322-9944.

---