TAB Plays Defense on Bills to Erode Reporter Shield and Libel Defense Laws

posted on 4.17.2017

With just 40 days left in the 85^th Texas Legislature, and amid TAB’s efforts to pass an aggressive legislative agenda, TAB is fighting an effort by a Panhandle lawmaker to weaken both the Free Flow of Information Act and current libel defense laws, both of which TAB has had a major hand in enacting or fine-tuning over the past ten years.

The House State Affairs Committee heard two bills last week, HB 3387 and HB 3388, both by Rep. Ken King, R-Canadian, that stem from the unsuccessful libel suit a Canadian ISD school board trustee filed against a hyper-Conservative blog.

You can read more about the suit that suit that caused it all here.

Both proposals are blatantly unconstitutional and would wither and die under the first court challenge to them.  

However, it is TAB’s belief that no newsroom should have to incur a costly court battle to prove the point.

TAB and others presented a credible case against passage of the measures, with testimony coming from some of the state’s top media law professionals and others including two members of TAB’s Newsroom Legislative Committee, Stacy Allen of Jackson Walker LLP, and Laura Prather of Haynes and Boone LLP.  

HB 3387 says being a public figure in a libel suit, in certain circumstances, should not matter for the purpose of establishing “actual malice” in a case. 

It seeks to undo more than 50 years of case law established by the U.S. Supreme Court’s 1964 decision in the landmark case, Sullivan v. New York Times.  

The Sullivan decision established the “actual malice” libel standard for U.S. newsrooms.  Journalists cannot broadcast or publish material that they know to be false or act in a reckless disregard of the truth.  

HB 3388 would alter the 2009 Texas reporter shield law statute that TAB drove to passage. 

It would essentially strip newsroom staffers of the privilege against compelled testimony and forced release of work product, if the journalist had donated to a political campaign in the last five years or if the newsroom staffer worked for an owner who has done so either individually or as part of PAC.   

“I think it’s a very bad idea for the legislature to become involved in deciding who a journalist is based on their political beliefs,” said David Donaldson, a longtime Texas media law specialist who is now a University of Texas adjunct professor.

“It’s just wrong. I don’t think you should do it. I think it violates the constitution if you do.”

But the reception by the committee was cool due in large part to the presence of the group behind the conservative blog outfit. 

Both measures were left pending after the hearing.

So with less than six weeks left in the session, TAB has a real battle on its hands to preserve hard fought press freedoms enshrined in Texas law and the First Amendment. 

In many ways, it’s just another typical legislative session for TAB.

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

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