Law & the Media in Texas — FOI Searches Shield & Students

Freedom of Information

Newsroom Searches

On April 9, 1971, protesting students of Stanford University took control of the Stanford University Hospital administrative offices and an adjoining corridor. Nine policemen were injured when they tried to break through a student barricade.

Two days later, The Stanford Daily ran photographs of the incident. As a result a warrant was issued from municipal court to search the offices of the newspaper for photographs and negatives for the incident. The search occurred and no photographs were found.

The newspaper sued Palo Alto Police Chief James Zurcher, the district attorney and the officers who conducted the search, claiming infringement of the First, Fourth and Fourteenth Amendment guarantees.

A federal district court held that the search was illegal. An appeals court concurred in 1976. However, in 1978 the U.S. Supreme Court ruled by a 5 to 3 decision that “newspapers may be subject of unannounced searches as long as those searches are approved beforehand by a court’s issuance of a search warrant.”

Zurcher v. The Stanford Daily, 98 S.Ct. 1970 (1978).

A federal law that went into effect in 1981 limits the circumstances in which surprise searches may be conducted on newsrooms. The law requires government officials to use subpoenas first and requires guidelines for limiting searches thereafter.

Since 1979 Texas has had a law relating to newsroom searches. The law was added to the Code of Criminal Procedure under “Search Warrants” (Art. 18.01). The law primarily adds to the basic approach to search warrants the stipulation that “a judge of a statutory conduct court, district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants.” Another section of the same law requires that the search warrant state specifically what is being sought in a newsroom search.

Since 1979 Texas has had a law relating to newsrooms searches. The law was added to the Code of Criminal Procedure under “Search Warrants” (Art. 18.01). The law primarily adds to the basic approach to search warrants the stipulation that “a judge of a statutory county court, district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants.” Another section of the same law requires that the search warrant state specifically what is being sought in a newsroom search.

The Shield Issue

On June 29, 1972, the United States Supreme Court decided by a 5-4 vote that reporters don’t have the constitutional right to withhold confidential information from grand juries.

The decision of the court:

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.

Three cases were consolidated in the opinion by the court. They have commonly become known as the Branzburg decision although the Earl Caldwell case was the best know of the three. 92 S. Ct. 2646 (1972)

The cases involved Caldwell, a reporter for The New York Times, Paul M. Branzburg, a reporter who was working for the Louisville Courier-Journal at the time of the incident, and Paul Pappas, a newsman-photographer for a New Bedford, Massachusetts, television station, WTEV-TV.

Caldwell refused to testify before the federal grand jury about information he obtained through interviews with members of the Black Panther Party.

Branzburg wrote a story describing the processing of hashish, withheld the names of the two persons he observed when called before a Kentucky grand jury.

Pappas was covering racial disturbance in New Bedford and was invited by the Black Panthers to enter local headquarters of the party when a police raid was expected. The invitation was made with the stipulation that he could take pictures but could not report anything else from inside the headquarters. The raid didn’t occur, so Pappas reporter nothing. He was called before a Massachusetts grand jury, but refused to appear.

In its opinion the Supreme Court said, “We are asked to create another (privilege) by interpreting the First Amendment to grant newsmen testimonial privilege that other citizens do not enjoy. This we decline to do.”

The court indicated Congress could create statutory provisions for reporter’s privilege and that states were free, within First Amendment limits, to fashion their own standards of privilege.

Shield bills were introduced in the Texas legislature in 1971 and 1973.  The 1973 bills were part of the reform package that included the Open Records Act and the shoring up of the open meetings statute.  But the shield bills bogged down and languished. 

Other bills were introduced in other sessions after that, and finally in 2009 the legislature passed and the governor signed a Free Flow of Information Act. 

The law provides a qualified privilege for journalists.  A journalist is defined as anyone who gets a substantial portion of her or his livelihood from work as a writer/reporter.  Bloggers are not covered.

The law deals with both civil and criminal matters.      

In criminal cases a journalist would be required to reveal information when a felony is involved or when someone admits to a crime.  Also, a journalist may not withhold information when doing so might result in death or substantial bodily harm.

In civil cases, a judge may require a journalist to reveal information that cannot be discovered in any other way and when the information is essential to both sides in a dispute.

Student Files

Two acts passed by Congress in 1974 permit students and parents at any institution receiving federal aid open access to student records and files.

The laws were Public Law 93-380 and 93-568 and are also known as the Family Education Rights and Privacy Act of 1974. The act threatens federally funded institutions with loss of funds if they fail to comply with requests.

The act grants to students the right to inspect, to obtain copies, to challenge and to a degree control the release of information in their educational records.

A section of the Texas Open Records Act requires that student records of state schools be made available to the student, parent, guardian or spouse.