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State House lawmakers are proposing a new draft of the state shield law that would limit the law’s scope but maintain protections for free, online publications. The proposal is part of ongoing negotiations about whether to extend the legislation that protects journalists from having to reveal their sources.
Sen. Clayton Hee has been pushing to revise the law to redefine its scope and curb what he sees as irresponsible journalism.
The senator from Kaneohe has caused an uproar in Hawaii’s news media community for seeking to remove protections for free newspapers and magazines and limiting the definition of a newspaper to print publications.
Rep. Karl Rhoads, the lead House negotiator on the bill, announced the new draft Thursday. The bill keeps protections for digital newspapers and free publications, but it accepts some of Hee’s amendments by making unpublished notes vulnerable to subpoenas and allowing a defendant in a criminal case to obtain some information if it’s necessary to ensure a fair trial.
Rhoads said the new draft is a compromise and that the committee will revisit the issue Monday.
In his personal opinion, Gerald Kato, a journalism professor at the University of Hawaii at Manoa, said he is at a loss on Rhoads’ description of the draft as a compromise. "It’s no better than the Senate draft," he said. "It shows an insensitivity to how journalism and news-gathering is done, and I hope the conferees reconsider this provision and indeed other provisions in the conference draft."
He added that it has been made clear that the unpublished-information provision in the current law is important. "Changing that as proposed in the conference draft would be devastating for journalism and news-gathering," he said.
Hawaii’s current shield law guards journalists from having to reveal anonymous sources or give up unpublished notes in court proceedings. As in other states, the purpose of the law is to encourage whistle-blowers to come forward without fear that journalists would be required to reveal who they are. The law has some exceptions, such as when the information is needed to investigate felony or defamation cases.
Hee has been pushing for limits, saying that the First Amendment provides ample protection for sources to speak to reporters. He says cutting out free online media would provide needed guidelines for judges. Hee also suggests there is a link between the current law and media getting stories wrong. At a hearing on the bill earlier this session, he handed out examples of media errors, including an image of the "Dewey Defeats Truman" Chicago Tribune headline from 1948.
"I am certain that those kinds of irresponsible reporting would not be protected by the Senate’s version of the shield law," he said.
The senator also criticized Hawaii’s online media, saying there are some "very mean-spirited" articles and comments.
At the same time, he said he can’t imagine a case in which the shield law would be needed in Hawaii.
Journalism advocates, including a coalition of media organizations including The Associated Press, Hawaii News Now and the Star-Advertiser, say the lack of cases shows the law is clear and effective. They hoped to make the law permanent this year with no changes.
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, sent a letter Friday to Senate and House conferees about both versions of the bill.
"If passed, the amendments would provide one of the weakest protections for journalists and their sources in the nation and do more harm than good in advancing public discourse on important public issues in Hawaii. Passing such a diluted version of the state shield law shows a disregard for the important principle that journalists must be free to work independently of the judicial process, ignores the public interest in a reporter’s right to keep information confidential, and dismisses the very real chilling effect on the public’s receipt of information on important controversies," Brown said.
