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Texas Shield Law Passes, Opportunity Open for "Substantial" Blogs

by: Matt Glazer

Wed Apr 01, 2009 at 04:58 PM CDT

The word substantial means a lot more to bloggers and citizen journalism.

Today House Bill (HB) 670, simply referred to as the Texas shield law,  passed to engrossment.

The bill analysis for HB 670 describes the need and function of the bill.

Thirty-six other states and the District of Columbia have statutes relating to the free flow of information and the right of a journalist to gather and communicate the news. Under current Texas law, a journalist has no assurance that a whistleblower's identity or information may be kept confidential without the journalist's risk of imprisonment. A whistleblower may hesitate to come forward to discuss matters of public concern because of fear of retribution. If a journalist cannot guarantee confidentiality, a whistleblower may not provide information to a reporter and, ultimately, to the public about matters of public concern.

C.S.H.B. 670 creates a qualified privilege and provides for a balancing test for compelled disclosure of confidential and non-confidential information and sources by a journalist. The test would be applied by a judge rather than by the subpoenaing party or by the journalist.

The most important part of this bill for bloggers is the definition of journalist.

"Journalist" means a person, including a parent, subsidiary, division, or affiliate of a person, who for a substantial portion of the person's livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider and includes... (emphasis added)

After contacting Rep. Trey Martinez-Fischer, author of the bill and chairman of the Mexican American Legislative Caucus (MALC) the reason for the definition becomes clear.

"One of the compromises that inevitably needed to be made in order to get HB670 to pass was in regard to online communication and blogging. Bloggers affiliated with news organizations (like Elise Hu and KVUE) would be covered under HB670 as would journalists as defined as those who derive a 'substantial portion of the person's livelihood [from journalism or other news reporting].' So basically, someone like me who has a blog (albeit, an awesome blog) wouldn't be covered under HB670."

As a quick aside, Rep. Martinez-Fischer and his office were quick to get back with me and were more than helpful to take time out of their busy to respond.

In pushing further, a blog or citizen journalist could be covered by this shield law if the site and staff were being paid and making a larger portion of their living off the website.  The only national comparisons I can think of would be Raw Story, DailyKos, Firedoglake, and Open Left.

Clearly, Burnt Orange Report is not in that classification yet, but we could be, and if that happens, we would be covered.

That shows the strengths of this bill.

It is not totally inclusive, thus creating a bill that is too broad and inclusive. However, the bill will not need to be amended if the future of journalism includes ad based, citizen journalism.

With the future of print and traditional news unclear, Rep. Martinez-Fischer wrote a bill that is sufficient to today's journalism but also open for the journalism of tomorrow.


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