Texas House considers bills to erode press protection, expose journalists, bloggers to more lawsuits

By J. David McSwane
The Dallas Morning News
Originally published April 12, 2017

AUSTIN — Plans to force journalists to reveal their sources  and further expose media outlets to lawsuits made strange bedfellows Wednesday as leaders of journalism advocacy groups attacked two bills alongside members of a far-right fundraising and propaganda outfit.

During a House committee hearing, two bills authored by Rep. Ken King, R-Canadian, drew protests from prominent First Amendment attorneys who say the bills violate the U.S. Constitution and would suppress the reporting of information in the public interest.

One bill attacks the reporter’s shield law, which protects journalists from being forced to testify and reveal their sources in court and from having their records subpoenaed. That bill revokes that protection for reporters who worked for or donated to political campaigns within the last five years.  The bill also would strip that protection for a reporter who works for a news organization owner who has done so, a broad qualification that could affect just about every reporter in the state.

 For instance, The Dallas Morning News‘ parent company, A.H. Belo, has many shareholders who, however removed from the editorial operation, might be politically active.

That places unconstitutional limits on political speech, said Donnis Baggett, executive vice president of the Texas Press Association.

“It would limit the practice of journalism to those who are legally prohibited from practicing their First Amendment rights,” he said.

King is working on a revision of that bill, which was left pending, but said his intention isn’t to squelch journalists but rather people “who buy themselves an iPad and call themselves a journalist,” an apparent jab at Empower Texans, the conservative group funded largely by Midland oil billionaire Tim Dunn.

Empower Texans straddles the line between political advocacy and news gathering because it operates both a powerful political action committee and a media outlet known for targeting lawmakers it views as not sufficiently conservative. While many traditional journalism organizations abhor such an arrangement, First Amendment attorneys say journalistic protections should be broadly applied.

“I think it’s a very bad idea for the legislature to become involved in deciding who a journalist is based on their political beliefs,” said David Donaldson, representing the Freedom of Information Foundation of Texas.

“I don’t see a way around that,” he added. “It’s just wrong. I don’t think you should do it. I think it violates the constitution if you do.”

Representatives with Empower Texans said the bills were an obvious attack against their group, whose president Michael Quinn Sullivan successfully defended himself against a recent defamation suit filed by Salem Abraham, a school board member in Canadian, in King’s district.

Abraham lost his suit against Sullivan because the Texas Supreme Court considered him a public figure, and following decades of court precedent,  public figures who sue for defamation must prove that false information was published or broadcast with “actual malice.”

King’s other bill targets that precedent and would make it much more difficult for a news organization to defend itself in a libel suit.

That bill, also tabled in the State Affairs committee, would require that reporters specify how actions in the story relate to the public figure’s official duties. In general, it also would make it more difficult to argue who is a public figure and who is not and would open the floodgates for lawsuits that today are often quickly dismissed.

Abraham said that precedent unfairly cost him his case and thousands in attorney’s fees.

“If you want to play in Texas, and you want to fight to defend your reputation, it’s impossible,” he said.