Note: This page covers information specific to Texas. See the section on Protecting Sources and Source Material for more general information.
Texas does not have a shield law. Nevertheless, there may be other legal grounds for protecting your sources and source material in Texas.
Some Texas state courts have recognized a qualified "reporter's privilege" against disclosure of the identity of a confidential source based on the First Amendment to the U.S. Constitution and the Texas Constitution. However, this privilege applies only when information is sought in a civil case, and some Texas courts have refused to recognize it altogether. Texas courts have not recognized a common law privilege for journalists.
Federal courts in the Fifth Circuit, which encompasses Texas, recognize a reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of confidential sources. It is a qualified privilege, meaning that a court may order you to reveal protected information under certain circumstances, even if you qualify as a "reporter" for purposes of the privilege.
In addition, the Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Constitutional Protection in State Court
At times, Texas state courts have recognized a qualified reporter's privilege for confidential sources based on the First Amendment to the U.S. Constitution and (to some extent) the Texas Constitution. In recent years, however, Texas court decisions have cast doubt on the continued validity of this privilege.
Who is Covered?
The privilege clearly applies to traditional "reporters," like those working for a newspaper or television news program, but the law is not clear on whether it applies to amateur and non-traditional journalists or others who publish information online.
What Information is Protected?
The reporter's privilege shields the identity of confidential sources, and you may lose the benefit of the privilege if you disclose the identity of your source to an outsider. At one time, Texas courts applied the privilege to non-confidential information collected in the newsgathering process as well, but recent cases have rejected this approach.
The privilege only applies when information is sought from a reporter in connection with a civil case. So, if a criminal defendant or state prosecutor subpoenas you for information in connection with a criminal case, the reporter's privilege generally will not cover you.
How Strong is the Protection?
When the privilege applies, it is qualified. This means that a court may order that you disclose the identity of your source when other interests outweigh your need to protect it. A court may be more inclined to order disclosure when a reporter is a party to the case in which the information is sought.
For more information on the reporter's privilege in Texas, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Texas.
Constitutional Protection in Federal Court
Federal courts in the Fifth Circuit, which encompasses Texas, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of confidential sources and possibly to non-confidential information collected during newsgathering.
Who is Covered?
The privilege clearly applies to traditional "reporters," like those working full or part-time for a newspaper or television news program, but the law is not clear on whether it applies to amateur and non-traditionalists journalists or others who publish information online. Texas courts have indicated that the privilege applies to freelance writers, but not to freelancers who publish only informally and sporadically.
What Information is Protected?
The reporter's privilege clearly applies to the identity of confidential sources, but whether it protects other non-confidential information is less certain. When information is sought from a reporter in a criminal case, there is no privilege for non-confidential sources (i.e., sources who did not give information in return for a promise of confidentiality) or other non-confidential information collected during newsgathering. In civil cases, the privilege may apply to non-confidential information, but the law is not clear.
How Strong is the Protection?
The reporter's privilege is qualified, meaning that a court may order you to reveal protected information if it finds that the need to reveal that information outweighs your interest in protecting it. As a practical matter, courts are more inclined to order disclosure when you are a party to the lawsuit in question, or when a criminal defendant seeks information in order to mount a defense.
For more information on the reporter's privilege in the Fifth Circuit, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 5th Circuit.
Privacy Protection Act
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.
