Go with the (free) flow 


It’s March 30, and Doug Toney, the New Braunfels Herald-Zeitung’s editor and publisher, can only spare 15 minutes to expand on what he said during his three minutes in front of the Texas Senate Committee on Jurisprudence. Then he’s due in court.

Toney had testified two days earlier in support of SB 966, the “Free Flow of Information Act,” (aka the “Shield Law”), which would give journalists limited protection from law enforcement and lawyers who would force them to hand over notes and materials, out sources, and testify in court. Authored by senators Rodney Ellis (D-Houston) and Robert Duncan (R-Lubbock), the bipartisan proposal would add a step to the subpoena process: If a lawyer wants to subpoena a journalist, a judge will have to decide that the lawyer has exhausted all alternative sources and it’s absolutely necessary.

What’s of concern to journalists here is the ability to protect anonymous informants (and if you are that informant, it’s of interest to you, too). Supporters of the bill — including Rich Oppel, editor of the Austin-American Statesman, and Lucy Daglish, executive director of Reporters Committee for Freedom of the Press — unrolled in front of the committee a long list of state news stories that wouldn’t have been possible without anonymous sources: the Texas Youth Commission sex-abuse scandal, the Texas Lottery jackpot inflation scandal, the Enron accounting scandal, and the Firestone Tire and Ford Explorer rollover scandal. Already 32 states and the District of Columbia have passed a shield law, and 11 of those offer journalists almost absolute subpoena immunity. Currently, case law allows Texas journalists certain protections, but only in civil litigation.

“These things are critical if we’re going to have a press that is free to operate, to examine, and report on the operations of government,” Toney said in a phone interview with the Current. “I spent part of my career in the Midwest working in Indiana where they have an absolute shield law. I worked on some stories that resulted in significant changes in government because of corruption, and it would not have been possible without people stepping forth and coming to me and saying, ‘Can you guarantee that my name will never be revealed by you, your editor, or your newspaper?’ I could look them in the eye and say, ‘There’s no way the courts can force us to reveal your name.’”

Media attorney Laura Prather, representing the Texas Association of Broadcasters, the Texas Daily Newspaper Association, and the Texas Press Association, described Texas prosecutors as having “run amok” and presented the committee with a survey that showed subpoenas issued to the media rising substantially in the last few years. In 2005, Prather reported, 585 subpoenas were issued to journalists. In 2006, the number rose to 650. In January and February of this year, 131 subpoenas went out. At that rate, media organizations can expect nearly 800 subpoenas by the end of 2007.

The Senate Committee accepted and sent to the full Senate a clarified substitute bill by Senator Kirk Watson (D-Austin). The companion bill in the House, HB 2249, is sponsored by another bipartisan team, representatives Aaron Peña (D-Edinburg) and Corbin Van Arsdale (R-Houston), but has yet to be scheduled for a hearing. In preparation, though, Van Arsdale is circulating his own subpoena survey to media organizations.

SB 966 was opposed by corporate interests, including the Texas Association of Manufacturers and the Texas Association of Business, who feel it will embolden employees to break confidentiality agreements and leak proprietary information. However, at the latest Senate hearing on April 11, the Business Association withdrew their objection, leaving Texas prosecutors as the main opposition.

According to Bexar County First Assistant District Attorney Cliff Herberg, who testified against SB 966 at the committee, Bexar County sent 134 subpoenas to the media, more than any other county in the state. But none were used to force a journalist to reveal an anonymous source, Herberg said.

“Nobody here has an objection to a confidential informant privilege; we’ll work with them on that.” Herberg told the Current. “I’ve been doing this since 1999, and the reporters that I can recall putting on the stand? Two in nine years. We’ve generated 134 subpoenas in 57,000 cases. I don’t think that’s oppressive.”

Although the bill was designed to give journalists a “qualified” rather than “absolute” privilege, Herberg describes the language in SB 966 as impenetrable and an “atom bomb” for prosecutors. Usually the subpoena is used to get videotaped evidence, but sometimes it’s because journalists make good witnesses, Herberg said.

“I want a neutral, unbiased witness, and golly, a professional reporter who stands in front of a camera and is a good-looking talking head? That’s wonderful: a neutral, unbiased witness who has no axe to grind against this guy. What better evidence do I get?”

This sort of attitude disgusts Toney.

“I listened to all these DAs testify in Austin after I testified, and frankly, all they care about is easy ways to get evidence,” Toney said. “The Free Flow of Information Act, all it really does is set up a threshold, in which if `prosecutors` ask for this information, we can go to an independent judge, have him review their request to see if it meets a threshold of what I refer to as ‘unique and critical information.’”

But today, Toney isn’t immediately concerned with anonymous informants, but opposing the frivolous use of a prosecutor’s subpoena power; two of his staffers are being yanked out of the newsroom to testify in a marijuana-possession trial.

Toney zips through the story: In August 2006, an H-Z photographer and reporter were covering a fatal car wreck, when another driver sped through the accident scene, allegedly narrowly missing a sheriff’s deputy. The deputies nabbed the driver several miles down the road, and arrested him for possession of marijuana.

In mid-March, the Comal County District Attorney’s office issued a subpoena for all of H-Z’s photographs from the scene, and two for the testimonies of each staffer. Toney argued with the prosecutor. Their testimonies were unnecessary, he said, since they didn’t witness the crime. According to Toney, the prosecutor told him that they’d expected the defendant to plea bargain, and if he didn’t they would use media testimony to hit the driver with a reckless-endangerment charge.

Prosecutors familiar with the case said the media testimony would also be used to establish probable cause if the defendant challenged the police’s reasons for stopping him. Toney accuses the prosecutor of using the media to intimidate the defendant.

Under the Texas bill, a judge would’ve had cause to reject the  subpoenas because their testimony wasn’t essential to establishing guilt, and the same information was available from multiple alternative witnesses.

In the end, the pothead buckled; the March 31 H-Z headline read, “Plea stops trial; media testimony not needed.”

“To me, that’s unconscionable,” Toney said. “It just flies in the face of the separation of a free press and of government. From a standpoint of public trust, the press must not act, nor be perceived, as an agent of the government. It’s repugnant.” 


More by Dave Maass

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