Rodney Ellis of Houston has sponsored a bill in the Texas Senate that will create a privilege for "journalists" in the event they are called upon to testify. Senate Bill no. 604 has gotten out of the Senate Jurisprudence Committee with some changes, and it basically says that a journalist doesn't have to testify about any information he/she got while acting as a journalist.
But there are a couple of exceptions. First, a journalist will have to testify if the person who wants that testimony can prove that the testimony is relevant, material and essential to his/her claim or defense. In other words, a journalist must testify if the person who wants that testimony can prove that it's necessary to make the case. The original version said that the party wanting the testimony also had to prove that the information could not be obtained through alternate sources, but that line was eliminated by the Jurisprudence Committee over Rodney Ellis' objection.
And there's another very important common sense exception. If the journalist is an eyewitness or if he/she participates in the crime or tortious conduct then the privileged goes out the window.
The new version doesn't sound all that bad for either side, however the Texas District and County Attorneys Association, as of April 16, still opposed it.
But there's another group out there that doesn't get attention. A question for the Texas blogosphere is whether bloggers are covered. Should bloggers be covered? There are those who say "no." In an article by Josh Gerstein in the NY Sun, there's this:
An attorney for the Texas Broadcasters' Association, Paul Watler, said he doesn't see bloggers posing much of an obstacle to press shield laws. "You can look at the function journalists fulfill and distinguish it from what a blogger does," he said.
Mr. Watler pointed out that most bloggers comment on facts reported by others. "I think there's a distinction in how they go about gathering information," he said. [Emphasis added.]
Mr. Watler seems to be saying that bloggers don't need to be covered, and it is hard to imagine a case in which a blogger would be called upon to testify about comments the blogger made about facts reported by others. But "most" is not synonymous with "all." There are blog that actually do collect and report original material, and you are reading one of those blogs right now.
It's going to be up to judicial discretion whether a blogger would qualify for the privilege under the proposed law, because any blogger who wants to claim the privilege will have to be able to convince a judge that he/she is a "journalist" working on behalf of a "news medium" as those terms are defined by the pending statute:
"Journalist" means a person, or an employee, independent contractor, or agent of that person, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination by any news medium.
"News medium" means a person who in the ordinary course of business publishes, broadcasts, or otherwise disseminates news by print, television, radio, or other electronic means accessible to the public.
It would be hard for most bloggers to meet the definition of "news medium" because, for whatever reason we might have for doing it, it probably isn't a "business." Main stream media is carving out a privilege for themselves. And they want to be the exclusive beneficiary of that privilege. Jonah Goldberg, addressing the jailing of the reporters in the case of the outed CIA employee, Valerie Plame, summed it up nicely:
What's particularly ironic is that the big-media lawyers fear the courts will allow a blanket shield for journalists because there's no way to exclude one-man-band web journalists — bloggers — from the new right. And what's the point of giving the nobility a new privilege if any peasant can take advantage of it, too?
By lobbying for legislation which would make it tough for a blogger to claim the privilege then main stream media are acting very elitist.