Texas court finds environmental website publisher not entitled to protection under state shield law

A Texas state judge recently ordered a local website publisher to turn over e-mail messages and other newsgathering materials, finding she did not qualify as a journalist under the state's shield law.

The issue arose as part of a civil lawsuit in which a Texas homeowner alleged that Range Resources Corporation's natural gas drilling activities contaminated his well by introducing methane into the water supply. In response, the company accused the homeowner, Steven Lipsky, and an environmental consultant of conspiring to harm its reputation.

As part of discovery proceedings in the case, Range subpoenaed Sharon Wilson, the publisher of a website titled "Texas Sharon Blue Daze Drilling Reform", for information relating to her correspondence with Lipsky, the U.S. Environmental Protection Agency and other organizations and individuals.

Wilson's involvement stemmed from her posting a video clip that she titled “Hydraulic Fracturing turns garden hose to flamethrower" to YouTube in early 2011.

The footage came from Lipsky, who filmed a flame spurting out of a garden hose hooked up to a well at his home in Parker County, Texas. Range drilled at his home using hydraulic fracturing in 2009. A couple years later, environmental consultant Alisa Rich, a co-defendant in the company's defamation claim, found methane in Range's well and alerted the EPA. Lipsky sent the video to Wilson, a stranger to him, through an automated form on her website, which seeks to draw public attention to environmental issues.

The subpoena requested that Wilson turn over several documents related to her coverage of this case, namely copies of e-mail messages between Wilson, Lipsky and various other officials involved in the investigation of the allegations. Claiming statutory protection for such materials under the Texas shield law, Wilson objected to the request.

The Texas shield law, which was enacted in 2009, defines a journalist entitled to the law's protection as one who “is earning a significant portion of the person’s livelihood by obtaining or preparing information for dissemination by a news medium or communication service provider,” according to the Texas portion of The Reporters Committee for Freedom of the Press’ Privilege Compendium.

Judge Trey E. Loftin of the 43rd Judicial District Court in Weatherford, Texas, found that Wilson is not protected under the state’s shield law because “she did not create her blog for the purpose of making money.” The judge also noted that Wilson had no formal education in journalism and made no claims of total objectivity.

“The whole thing is pretty disturbing," Wilson said in an interview. "I was not involved in this case. I didn’t even know these people before the case came out in the news. It’s understandable that [Lipsky] would send [the video] to me because I have been blogging about the case extensively. It was an interesting case to me and I noticed that much of the news reporting was missing important connections that I felt needed to be made.”

After Loftin's May 15 order, Wilson said her attorney turned over several of the documents after negotiating with attorneys for Range, who could not be reached for comment.

Related Reporters Committee resources:

· Texas – Privilege Compendium: a. Reporter