Legislation offers public protection

When viewed from the standpoint of reason and reality, there are no good arguments why something called the Free Flow of Information Act should not become law in Texas. After all, this is legislation that would be a valuable tool to shine light on wrongdoing. It would encourage those who have knowledge of either criminal or questionable activity to come forward with information without risking being identified and suffering retribution.

Basically, House Bill 670 and its companion Senate Bill 915, would give journalists a qualified privilege to keep secret the identity of certain sources and materials. It would encourage whistleblowers to call attention to wrongdoing by supplying information to representatives of legitimate print and broadcast organizations without fear of retaliation.

For example, this could have come in handy as news outlets investigated the many instances of abuse and corruption in Texas Youth Commission facilities across the state.

By all rights, this legislation, which has been thoroughly debated and tweaked in previous sessions of the Texas Legislature, should already be law.

In 2007, a revised bill providing for the limited immunity for journalists passed the Senate by a 27-4 margin (several who opposed the bill in its original form changed their opinions when the compromises were written in), but died in the House as the session drew to an end because of a technical and nonsubstantive point raised by Rep. Debbie Riddle, R-Tomball. The delay caused by the objection killed the legislation because the legislative session was coming to a close.

So supporters are getting an early start this session. A hearing in the House Judiciary and Civil Jurisprudence Committee (Odessa's Rep. Tryon Lewis is a member of that committee) produced solid testimony in favor of the qualified privilege.

It's worth noting that 36 states and the District of Columbia already have the protections offered in the proposed bill - some dating back as far as 1896 and most with an even higher protection than what is sought here. If they limited officials' ability to render justice, prosecutors surely would have sought to have the protections repealed; no state has done so.

Ironically, the stiffest opposition in Texas comes from district attorneys. But that's puzzling because the bills would not shield journalists from testifying in every case. Journalists can be compelled to testify if they witnessed a crime or their information is relevant and can't be obtained any other way. It also doesn't protect someone who confesses a crime to a journalist. It just creates a legal process that would place the burden of proof on attorneys trying to force journalists to reveal sources and materials using the power of subpoena. It would allow trial judges to hear evidence and decide whether lawyers could obtain the information elsewhere without using reporters as shortcuts and unwilling arms of the investigative process. It would protect the proprietary information held by the media that does not need to be disclosed.

Under the proposed bill, disputes in criminal and civil cases would be decided in court. A judge would hear arguments on both sides and determine whether the information is necessary to the case. If the judge rules that it is, then the journalist would have to testify. Actually, there are already examples of legal procedures that allow for protection of anonymous sources. Law enforcement agencies often use confidential informants and organizations such as Crime Stoppers that have no legal connection to law agencies, pay for information with the assurance "you can remain anonymous."

Also, we all know that a cornerstone of our criminal justice system is the notion that a person is presumed innocent until proven guilty. And the burden of proof rests with the state and prosecutors to prove this guilt beyond a reasonable doubt.

But the current procedure relating to journalists being compelled to testify basically flies in the face of this fundamental notion. The state can subpoena a reporter for either testimony or information, and the burden of proof rests with the journalist to prove why he or she should not be compelled to comply.

We believe the burden rests with prosecutors to show the information they seek is crucial to their case and that they have exhausted every other means of obtaining it before imposing their will on a branch of our society so crucial to free speech and the public's right to know.

It's as if some prosecutors opposing this reasonable measure are doing so because they don't want to have to work as hard as they should to ensure justice is served. If that is the case, it not only shifts the cost of investigations on to the media, but it also appears contrary to the basic tenant of American litigation - that each party should conduct its own investigation.

Prosecutors are supposed to be particularly adept at investigation, and if they cannot do it without piggy-backing on what the media does, perhaps they should look for another line of work that does not involve upholding the public's trust. To avoid having to work hard on the front end, prosecutors opposed to this legislation are ignoring the fact that the greater good is served with this bill. More wrongdoing will come to light, and there will be more crimes to prosecute.

In the meantime, there should be some framework established for the court to decide when the media has to turn over all of its proprietary work (without compensation), and, with such framework, the press will no longer risk being viewed as an arm of law enforcement and information concerning wrong-doing will flow freely.

We all know there are plenty of opportunities for corruption, even in district attorney's offices, and especially when you have a system that allows the wrongdoers to hide behind legal loopholes. We can close one big loophole by allowing journalists to do their jobs without fear of being bullied or intimidated by lawyers with ulterior motives.