Steve Fogle's Feature

Steve Fogle's Feature The Texas Free Flow of Information Act: A Legislative Success Story

If there was ever any doubt about the utility and worth of a reporter’s privilege against third party requests for information, the proof is in.

In just over 14 months since the passage of the Texas Free Flow of Information Act, the number of subpoenas for trial testimony, document production or broadcast reproductions has dropped dramatically. Newsrooms across Texas are back doing the work they were made to do: securing the news and broadcasting or publishing it to the public for the common good.

For years, advocates of the broadcast and publishing industry lobbied the Texas Legislature for the passage of a shield law. Because our Legislature meets only every two years, the time required to pass this law was twice what it might have been. In the legislative sessions in 2005, 2007 and 2009, free speech advocates took their message to both the House and Senate. Finally, the current law was passed by both houses and became effective May 13, 2009.

Before the passage of the FFOIA, Texas newsrooms were being inundated by requests for information, trial subpoenas and document subpoenas by both civil and criminal litigants. It had become the quickest, easiest way for litigants to secure factual information that had been gathered and published by news organizations. While that was a cost-saving method for those litigants, the cost to the news organizations was both substantial and unavoidable. Newsrooms had to set up standard protocols to manage and answer the innumerable requests. Most times, in order to ensure they were following the law correctly, this entailed the use of outside counsel, adding yet another cost to the transaction. While the actual costs of newsroom time, resources and attention spent on these requests were never quantified, the sheer number of requests highlights the depth of the problem.

According to statistics compiled by the Texas Association of Broadcasters, in the years leading up to the passage of the FFOIA, newsrooms were being subjected to an average of 30 requests per year, or one every two weeks. Some major market stations were served with subpoenas once every six days while another smaller market station was shut down for nearly two days in order to comply with the subpoena. Since the passage of the FFOIA, the numbers have dropped so dramatically that averages are in the single digits. Most stations report that just quoting the FFOIA provisions to the requestor has stopped most subpoenas in their tracks. While the bill passage was watched closely by media outlets, it is not well known outside those circles.

This is great news for the news organizations and not the death knell for litigants the opponents of the bill foretold. There is no indication that fewer civil cases are being filed because the litigants can't secure their proof from news organizations. Certainly, there is no indication that fewer criminals are being punished or set free because of this change.

Indeed, all the FFOIA actually did is return the litigants to the status they have always had under the law. They have just as many rights now as then, just as many legal theories with which to seek a civil remedy, and just as many sources of actual facts from those who were involved in them: not from a third party news source who arrived after the fact and reported what was told to them by the actual participants. Rather than having created a news room untouchable by the courthouse process, the FFOIA allows the news room to return to their assigned role in society -- to gather and report the news.

— Steve Fogle is a partner at Jackson Walker. He can be reached at sfogle@jw.com.