Law & the Media in Texas — Fair Trial Arrests & Interviews

Fair Trial Issues

Arrests, Complaints and Convictions

Texas law does not create a privilege for reporting arrests. Some states have blotter laws, others make the arrest a judicial procedure. But in Texas the first privileged proceeding upon arrest is the filling of the complaint or affidavit alleging that an offense has been committed.

The news media may use the name and the allegation at the time the complaint is filed, whether before or after arrest, and be protected by privilege. Using names of suspects before this point is uncharted legal and ethical territory in Texas.

Some people argue that the arrest may be reported. Others contend that the report in the absence of privilege could be grounds for a libel action if a complaint is not filed backing up arrest allegations.

In an account of the arrest of a suspect, reporters should avoid saying that police said they plan to file a complaint. Police can change their minds or new evidence can be covered. Even reporting the facts of the offense and referring only to a “suspect” could be dangerous because of the possibility of identification.

Reporting previous records can be troublesome. The reporting of a previous arrest not supported by the filing of a compliant is a questionable practice. And the reporting of a previous filing of a complaint not followed by conviction could be defamatory if the disposition of the case is not included.

The best rule of thumb is that reporting previous records must be justified. Public interest or concern is the best justification. Privilege may be lost in the absence of justification. The statute provides that privilege “shall extend to any first publication of such privileged matter . . . and to any subsequent publications thereof . . . when published as a matter of public concern for general information” (Article 5432, Texas Civil Statutes).

Previous records may be pertinent to a current story. The filling of complaints when enhancement or habitual criminal statutes apply is one example. Another example would be a report about a person who was charged with an offense shortly after having been released from prison. This kind of information is obviously pertinent to the story and should not be avoided.

Interviewing Prisoners

Federal Bureau of Prisons policy that limits interviews between reporters and federal inmates was upheld by the Supreme Court in 1974 (Saxbe v. Washington Post Co., 94 S. Ct. 2811).

The rule permits press interviews at federal minimum-security prisons, but interviews are prohibited in medium- and maximum-security institutions.

In 1978 the U.S. Supreme Court ruled that the First Amendment does not give the public or press any right of access to prisons.

The opinion also said that if the print media is given access to a prison, then the electronic media have a right to use cameras and microphones unless officials can come up with a sufficient justification to prohibit such coverage.

The case arose when KQED-TV in San Francisco sought to investigate allegations of mistreatment at the Alameda County Jail at Santa Rita.

Houchins v. KQED, 98 S. Ct. 2588 (1978).