Chip Babcock

Chip Babcock: When the First Amendment Wasn't Enough

About ten years ago I was asked to appear on a panel on Reporter's Privilege at the PLI Communications Law program in New York. Jim Goodale and, I suspect, most of the audience were astounded when I reported that a substantial segment of the press in Texas was against a shield law for reporters. I knew this would be a shock, which is why, just before speaking, I called the executive director of one of the press industry groups (for newspapers) to confirm what I knew — that most of the print press was against seeking a law from the Texas Legislature protecting confidential sources. There were a variety of arguments advanced for this unusual position: it would lead to licensing of the press, we shouldn't ask for favors from the government and anyway, the First Amendment protections were enough.

Well, for a time the First Amendment did indeed seem to provide all the protection one could expect from a state statute. I handled the first case to expressly recognize the First Amendment right of a journalist to protect her confidential sources. The U.S. Fifth Circuit Court of Appeals decision in Miller v. Transamerican Press came down in 1980. Then my partner, Paul Watler, obtained a similar result in a state court of appeals decision in 1991 in Dallas Morning News v. Garcia. Our partner Bob Latham successfully stared down Gerry Spence in a federal criminal case as he sought reporters' notes and sources. We regularly fought subpoenas, usually with success, and after a while the efforts to learn the identities of sources and to obtain outtakes and reporters' notes subsided. But then the tide started to turn.

The Miller decision was limited by the Fifth Circuit to civil cases only. The Fifth Circuit then confined Miller to confidential sources only and said that the First Amendment provided no protection for outtakes or reporter's notes. U.S. v. Smith (5th Cir. 1998). The Texas Court of Criminal Appeals ruled emphatically that the First Amendment and the Texas Constitution provided no — and they meant no — protection for confidential sources or unpublished information. Healey v. McMeans (Tex. Crim. app.-1994). We represented one of the parties to that unfortunate decision.

The Houston Court of Appeals did not overrule its prior decision protecting outtakes but called the decision into question when it refused to overrule a trial court decision ordering KTRK's Wayne Dolcefino to reveal a confidential source. Dolcefino v. Ray (Tex. app.-1995). You get the picture.

Lawyers who regularly represented the media saw this trend developing and were almost helpless to protect their clients. By the time Dan Rather and his producer Mary Mapes were subpoenaed in the Jasper dragging death criminal case, our firm was left with only procedural arguments worthy of a good criminal defense lawyer but hardly the stuff of freedom of the press. Ms. Mapes was actually fingerprinted when she declined to produce her notes, but the crisis was averted with some timely help from the Texas Court of Criminal Appeals. Her notes were never released.

Even without statutory or constitutional protection, our partner John Edwards was able to protect a confidential source for a small community newspaper by arguing the identity wasn't relevant.

Seven years ago I remember sitting with the great Ann Arnold, executive director of the Texas Association of Broadcasters, as we tried to figure out a way to get a shield law passed. My view was that until we got all the Texas press behind a bill, we were doomed to failure. Ann and the TAB, who had always been for the bill, got to work and soon, with the help of many many people, got the press groups unified and went to work crafting legislation. Yesterday, that seven-year effort came to fruition when the Governor signed the Free Flow of Information Act. The press and the public are better off for this important legislation.

— Chip Babcock is a partner at Jackson Walker. He can be reached at cbabcock@jw.com.