By the time you read this column, it’s likely Texas newspapers will have plotted a course on the shield law issue: To support it, oppose it or let it die from benign neglect.

Since mid-February, the Texas Press Association-Texas Daily Newspaper Association Legislative Advisory Committee has been conferring among its members and seeking feedback from members of our press associations. At stake was whether TPA and TDNA would echo the shield law endorsements already filed by Texas broadcast journalists, the Freedom of Information Foundation and a host of First Amendment attorneys.

Although some of our members believe the shield law issue does not affect them, I assure you it is a critical concern for all of us. Based on judicial actions in Texas and across the country, newspaper publishers can no longer depend on the good will of judges to uphold tenuous freedoms that are in jeopardy, whether we publish a 1,900-circulation weekly or The New York Times. 

Working with state Rep. Aaron Peña of Edinburg and Sen. Rodney Ellis of Houston, we have produced a good shield law that will help all of us do a better job of keeping the public informed and keeping us out of the courtroom and the jailhouse. It will codify into law basic protections for reporters and for the newsgathering process. If we can get it passed, Texas newspapers would join ranks with journalists from 31 states that already benefit from shield laws.

Texas has been a holdout on this front, long resisting efforts to pass a shield law. The two big factors were a lack of consensus among media groups and fear of asking the Legislature for a favor that might ultimately backfire on us.

But after Rep. Peña and Sen. Ellis filed their bills, it became apparent that Texas newspapers would have to stand a position this time around. So, in mid-February, we convened a strategy session with a group of media stakeholders, including TPA officers, board members and staff, representatives from the TDNA board and staff, Texas Association of Broadcasters and the FOI Foundation.

Also present were well-known First Amendment/media attorneys who gave us a state and national overview and presented compelling reasons why Texas journalists need a shield law and why it will work in our favor this time — and not against us.

After spirited discussion, our working group agreed that we would have to be unified to pass a shield law and if one passed, we would have to be vigilant about it just as we monitor all open government laws. Among our group was Don Adams, the former state senator who authored the Texas Open Records Act in 1973.

The attorneys in the group, Paul Watler, Chip Babcock, Laura Stapleton and David Donaldson, analyzed the proposed bills and recommended changes to produce the most effective language possible. On March 3, a handful of newspaper, TV and FOI representatives and attorneys met with the lawmakers and their staffs to fine-tune the wording.

The amended wording creates a fine balance and gives journalists a qualified privilege. That is, reporters can be compelled to testify in criminal cases only when strict criteria are met. Most notably, only if the information cannot be obtained from alternate sources.

Furthermore, it would require a hearing to determine whether a reporter’s testimony was essential to the “just outcome” of the case. On the other side of this new equation, the law also would establish an exception that would require journalists to testify in criminal cases if they were eyewitnesses to a crime.

In this way, the shield law restores the proper balance intended by the First Amendment, by reaffirming America’s founding principle of an independent press while also requiring journalists to fulfill their rights as citizens if they witness a crime. A shield law will allow journalists to meet the requirements of both endeavors: as citizens and as reporters.

At the end of the day, a shield law is about more than protecting confidential sources. It is about protecting the free flow of information.

Read the shield bills at www.capitol.state.tx.us/tlo/79R/billtext/HB00188I.htm and www.capitol.state.tx.us/tlo/79R/billtext/SB00604I.htm.