Cases Involving Open Discovery and the First Amendment In Texas

In Tilton v. Moye, 869 S.W.2d 955, 956 (Tex. 1994), the Texas Supreme Court recognized the importance of open discovery even in the face of a claim of First Amendment associational rights. See 869 S.W.2d at 957. While the court never stated that the interest in open discovery is a compelling one, it concluded that such an interest might justify disclosure of narrow limited groups of individuals based on a particularized showing of need. See id. In Bay Area Citizens, the Texas Supreme Court noted that the burden of showing harm to First Amendment associational rights must be light and that "the evidence offered need show only a reasonable probability that the compelled disclosure of [members'] names will subject them to threats, harassment, or reprisals from either government officials or private parties." Bay Area Citizens, 982 S.W.2d 371 at 376 (quoting Buckley v. Valeo, 424 U.S. 1, 74, 96 S. Ct. 612, 661, 46 L. Ed. 2d 659 (1976)). "The proof may include specific evidence of past or present harassment of members due to their associational ties or of harassment directed against the organization itself." Id. Although relator has not offered any specific evidence of harassment, Bay Area Citizens recognizes that potential infringement on an association's First Amendment rights may exist even in the absence of a factual record of harassment. See 982 S.W.2d at 377. The court cited cases holding that the mere potential for reprisals, even if only perceived by the party seeking protection, may be sufficient to show an infringement on First Amendment rights and that it is the task of the court to evaluate the likelihood of any chilling effect. See id.