By Stacy Allen
Sometimes, killing a bad bill can be as important as enacting a good one. So it was for newsrooms during the 2015 session of the Texas Legislature. My partner Paul Watler and I were privileged to assist the Texas Association of Broadcasters (TAB) in its successful efforts to safeguard the rights of journalists to report the news and obtain public records which are vital to newsgathering.
The testimony and advice offered by Jackson Walker lawyers this session continues a long tradition of assisting TAB in its work to advance the interests of Texas broadcasters.
For over two decades, since the Texas Supreme Court’s 1990 decision in McIlvain v. Jacobs, Texas appellate courts and the Fifth Circuit repeatedly held that journalists are insulated from liability for defamation when reporting the allegations of third parties, as long as those allegations are reported accurately (even if the allegations themselves later turn out to be false). But in its 2013 decision in Neely v. Wilson concerning the so-called “third-party allegation rule,” a divided Texas Supreme Court reversed a lower court summary judgment in favor of a broadcaster, holding that McIlvain did not insulate news media defendants from application of the traditional common law “republication rule,” which holds liable anyone who republishes false and defamatory statements made by third parties. TAB partnered with the Texas Press Association in obtaining legislation which effectively reversed Neely and reinstated the third-party allegation rule in Texas. The legislation reversing Neely marked a positive development for journalists.
In other cases, we succeeded in unwinding, amending, or blocking bills that would have had a negative impact on the profession.
For example, HB 2633 was a measure designed to combat barratry and other types of “ambulance chasing” by prohibiting the release of complete motor vehicle accident reports to the public. The original bill would have doomed Texas newsrooms to heavily redacted motor vehicle reports containing little information needed to report on a serious accident, let alone conduct a comprehensive investigative report on a problem intersection or potential auto defect. TAB and Jackson Walker persevered, fighting to the next-to-last day of the session to amend the bill to require that complete motor vehicle accident reports be furnished to FCC licensed radio and TV stations as well as general circulation newspapers. In some cases, explaining to committee members how the proposed legislation would have unintended adverse consequences for broadcasters was enough.
As filed, HB 4114, which imposed restrictions on businesses and websites that publish mugshots and criminal history information, did not apply to newspapers and their websites, but lacked such protection for broadcasters. TAB offered language drafted by Jackson Walker that was incorporated into the bill which passed as part of HB 1491, extending that carve-out to broadcasters.
Another problematic bill was HB 2918, which would have made it a Class B misdemeanor for an ordinary citizen to video record or photograph the conduct of a police officer in a public place within 25 feet of the officer. Television newsrooms have come to rely heavily on such bystander recordings when covering stories concerning alleged police brutality or misconduct. TAB and other critics of the bill were able to persuade the bill’s sponsor to pull it before it could be heard.
Included among other bills defeated were those which could have required stations to expunge accurate news stories from their websites and limited the criminal history information on which journalists could report. The testimony and advice offered by Jackson Walker lawyers this session continues a long tradition of assisting TAB in its work to advance the interests of Texas broadcasters.
Meet Stacy
In over 30 years of litigating complex state and federal cases across the country, Austin partner Stacy Allen’s aggressive approach to discovery and trial preparation has resulted in favorable judgments and settlements for a wide array of sophisticated commercial clients. Stacy’s national practice concentrates on intellectual property litigation, defense of federal and state class actions against insurers, defense of media companies and news organizations against defamation and privacy tort claims, defense of managed care companies in claims arising from complex provider contracts, and other commercial lawsuits and arbitrations alleging breach of contract, unfair trade practices, fraud, and other business torts.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.
