The Hawaii “shield law” — a statute that protects journalists from being forced to turn over notes, materials or sources to government authorities — has won praise for its forward-looking protections enabling more robust reporting in the islands.
If only that view was dominant among this state’s lawmakers as well.
Unfortunately, House Bill 1376 — which would make the law permanent — passed the House but now seems stalled in the Senate Judiciary and Labor Committee, chaired by Sen. Clayton Hee (D, Kahuku-Kaneohe). The bill would delete the June 30 sunset date for the law, so unless the measure gets a hearing by Friday, it will miss a legislative deadline and be dead for the session.
In short: Failure to get a hearing scheduled in the next day or so means the shield law is dead, period.
Most people might see this as an issue that has no effect on them, but they couldn’t be more wrong. Of all the stories produced by news media, the ones that have the greatest effect on the public often rely on sources that are confidential. Those sources, frequently whistleblowers who point out weaknesses in how government or the private sector deals with the public, would be far less likely to step forward if they knew a news organization could be compelled in court to identify them.
Hawaii’s shield law was enacted by the 2008 state Legislature, and already its protections have been exercised. In September 2009, Kauai Circuit Court Judge Kathleen Watanabe declined to allow a plaintiff to depose or subpoena documentary filmmaker Keoni Kealoha Alvarez in a controversial case on a dispute over native Hawaiian burials on a building site. Although the law specifically protects employees in established news media organizations, it also can apply to nontraditional journalists like
Alvarez and Web bloggers doing “materially similar” work.
The law also was invoked in the case of Web journalist Malia Zimmerman, who has fought the subpoena of her notes in the case of the Kaloko dam failure, also on Kauai.
HB 1376 has won the support of several professional and good-government organizations. Hawaii is among 49 states that offer some limited protections, and this law has been cited as a potential model for a federal shield law.
Some critics suspect that the law could be abused to give journalists unwarranted cover for their activities, but limits are in place to guard against this. For example, the shield does not apply in cases where the information is otherwise unavailable for the “investigation, prosecution or defense of a felony” or there is reason to suspect the source may be involved in a crime.
The Judiciary’s Standing Committee on Rules of Evidence testified that it now lacks information on how other states handle shield laws and could research this and other issues if the action was deferred. The trouble is, deferral means the law dies; at the very least, Hee’s committee should hear the bill and consider extending the sunset date while any such matters are resolved.
Laurie Temple, staff attorney for the ACLU of Hawaii, said in her testimony that protection of confidential sources has enabled the publication of national exposés, such as stories on warrantless wiretapping and illegal detention.
“A vibrant and meaningful state reporters’ shield will ensure that journalists continue to have the tools they need to hold the government accountable to the people,” Temple wrote.
We agree, and trust that the silent majority of “the people” will, too.