By Stacy Allen
In football, blocking and tackling is as important as connecting on a long pass. In a legislative session that was tough going for advocates of open government and news reporting, a tenacious defense won more victories than an aggressive offense. The Texas Association of Broadcasters (a Jackson Walker client) and an alliance of other organizations promoting the public’s right to know fought bravely, winning some and losing some.
The 2017 Session saw a wide-ranging assault on hard-won TAB victories from past sessions. Perhaps the worst among them was HB 3811 (Lozano), which would have gutted the Citizen Participation Act (CPA), the Texas anti-SLAPP statute (strategic lawsuit against public participation), that TAB helped pass in 2011. The CPA allows newsrooms to extricate themselves from frivolous libel lawsuits at the initial phase of proceedings by requiring the plaintiff to prove by “clear and specific evidence” facts supporting his or her claim. Failure to do so results in dismissal and an award of attorneys’ fees and costs to the defendant. The loss of this critical statutory safeguard would have been a major setback to newsrooms. HB 3388 (King) would have damaged the 2009 Texas reporter shield law statute that TAB drove to passage. It sought to strip newsroom staffers of the privilege against compelled testimony and forced release of unpublished work product, if a journalist had donated to a political campaign in the last five years or if the newsroom staffer worked for an owner who had done so either individually or as part of a PAC. HB 3387 (King) would have unwound over 50 years of precedent since the landmark U.S. Supreme Court decision in New York Times v. Sullivan by unconstitutionally narrowing the circumstances under which a libel plaintiff who is a government official or public figure must prove “actual malice” on the part of a journalist defendant.
Public access to government records was also under attack. Captioned as a bill on racial profiling, SB 1487 (West) would have made it more difficult to obtain the release of body and dash camera video of police shootings, despite the profound impact such videos have had on public attitudes towards (and reporting on) the use of deadly force by police officers in recent years. HB 2521 (Perez) would have prohibited, in certain circumstances, the release of mugshots generated by an arrest. HB 1725 (Hernandez) would have created a new exception in the Texas Public Information Act for personal information contained in traffic citations. HB 760 (Raney) would have created a new TPIA exception for dates of birth of living persons, depriving journalists of an effective means to differentiate between two individuals with the same or similar names to ensure their reporting is accurate. HB 809 (VanDeaver) would have prohibited a person operating a motor vehicle from using an electronic device, including a wireless communication device, to photograph or film a traffic accident—an important source of such images for journalists reporting on the accident.
All these bills and others like them died at various stages of the lawmaking process, due in large part to the dogged opposition of TAB. Jackson Walker lawyers (including me) were privileged to assist TAB in the “tackling and blocking” that brought these bad bills down. Jackson Walker’s Paul Watler also advised the Freedom of Information Foundation of Texas (a stalwart ally of TAB) on many of the same bills.
Frustrating TAB’s ambitious legislative agenda were some disheartening defeats for the cause of open government. Among the most disappointing was the failure to pass bills that would have reversed two 2015 Texas Supreme Court decisions that closed public access to records that had been deemed subject to disclosure under the Texas Public Information Act for decades. Boeing v. Paxton expanded the competitive bidding exception in the TPIA in two ways – it allowed private entities to claim the exception and also allowed the exception to apply to final, awarded government contracts (not just pre-award bids, as had previously been the case). Governmental bodies have since refused to provide records over 300 times in reliance on Boeing. Greater Houston Partnership v. Paxton redefined when publicly-funded private entities are subject to the TPIA. For three decades, Texas relied on the so-called Kneeland test to protect the public’s ability to monitor the use of public funds by entities. The Supreme Court abandoned the Kneeland standard and held the TPIA only applies to private entities “sustained” by public funds – a higher threshold that shields such entities from open records requests.
Bills co-sponsored by Sen. Kirk Watson and Rep. Giovanni Capriglione with the strong support of TAB would have returned the law to what it was before Boeing and GHP; both died in the House Government Transparency and Operations Committee. Given its history of persistence over multiple sessions, expect TAB to be back before and during the 2019 Session to complete the unfinished business of restoring the right of Texas taxpayers to know how their state and local governments spend their money.
The testimony and advice offered by Jackson Walker lawyers this legislative session continues a long tradition of assisting TAB in its work to advance the interests of Texas broadcasters.