First the bad news, at least for the media: Since the U.S. Supreme Court declined this week to hear an appeal by two reporters found in contempt of court for refusing to reveal the names of confidential sources, journalists, especially in Texas, have scant protection from prosecutors who want to turn the press into an investigative arm of the government.
The good news is that the Texas press has a friend in Attorney General Greg Abbott. Imagine that, a Lone Star Republican who defends an unfettered press. George W. , are you paying attention?
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Abbott was co-author of a friend-of-the-court brief, signed by the attorneys general of 33 other states and the District of Columbia, that urged the Supreme Court to rule in the appeal by New York Times reporter Judith Miller and Time reporter Matthew Cooper, who have refused to reveal the names of sources who leaked the identity of CIA agent Valerie Plame to them.
Without a ruling by the Supremes, the state of protection in Texas remains murky. Court rulings on reporters' privilege have been vague and sometimes contradictory, and Texas has no "shield law" protecting media. Texas courts instead look to common law and First Amendment rulings by the feds for guidance. "It's just not clear from state to state, district to district and circuit to circuit what the rules are," says Daniel Scardino, a lawyer in the media and intellectual property group for Jackson Walker L.L.P. Scardino is co-author of "The Reporter's Privilege in Texas," a review of Texas law on the subject that can pretty much be summed up this way: We're screwed.
The Legislature this past session refused to pass a shield law that would have given reporters some immunity, as it has several times in the past. Some journalists fear such a law moves us uncomfortably close to "licensing" journalists. Of course, not having a shield law moves particularly hard-hitting reporters uncomfortably close to the hoosegow. We in the media are not always the brightest bulbs on the Christmas tree.
"We wanted the federal government to give the same right [to clam up] to reporters given by most states," says Abbott spokeswoman Angela Hale. Abbott, incidentally, also provided key support to bills that passed this session requiring public officials to receive training in open government laws and to open private investments made by government to the public.