The state Senate Judiciary and Labor Committee on Wednesday made substantial revisions to a media shield law, removing bloggers and other nontraditional journalists and deleting the protection for unpublished information, like notes, unless it would lead to the identity of confidential sources.
The committee also left intact changes by the House that would expand the exceptions to the shield law beyond felonies and civil cases that involve defamation. Journalists would have to disclose information involving potential felonies, serious crimes involving unlawful injury to people or animals, and all civil cases.
Sen. Clayton Hee (D, Heeia-Laie-Waialua), the chairman of the Senate Judiciary and Labor Committee, described the revisions as "a balanced approach" that would still preserve some protection for journalists against the compelled disclosure of their sources in court.
But Jeff Portnoy, an attorney who represents the Hawaii Shield Law Coalition, an advocacy group for news media interests, including the Star-Advertiser, said he would rather let the shield law die than accept the Senate’s version.
"Kill it. Kill it," Portnoy said. "This is a piece of junk."
The shield law was crafted by the Legislature, the state Attorney General’s office and news media interests in 2008. Media interests asked the Legislature this year to extend the shield law past its scheduled expiration in July. Lawmakers had included a sunset as a precaution against any abuses, but the law has been rarely invoked by the media over the past five years.
"This is a complete gutting," Portnoy said. "And so, my only hope — our only hope — is that at some kind of conference committee rationality prevails. Facts prevail. The law prevails. And that the Senate version is completely rejected."
The shield law’s protection for bloggers and other nontraditional journalists has been cited by media interests nationally as a model. Forty states and the District of Columbia have some form of shield law for journalists, according to the Reporters Committee for Freedom of the Press, but there is no federal shield law.
The Hawaii shield law is broadly written to cover bloggers who function like traditional reporters as well as individuals, such as whistleblowers, who have similar reasons for protecting the confidential sources of information in the public interest.
The Senate’s version of House Bill 622 removes the protection for bloggers and nontraditional journalists and tightens the definitions of journalists and news agencies to more closely tether the shield law to traditional newspapers, magazines, wire services, and radio and television stations.
"It’s not about bloggers," said Gerald Kato, a communications professor at the University of Hawaii at Manoa and a former Honolulu Advertiser reporter who supports making the 2008 law permanent. "I want to emphasize that. It’s about nontraditional journalists. This thing about bloggers is just a red herring cooked up by the attorney general and opponents of this bill as a scare tactic."
He said the law is "about protecting our right as the public to information from whistleblowers, to get all the kinds of various information that people need of public concern."
Sen. Les Ihara (D, Moiliili-Kaimuki-Palolo) and Senate Minority Leader Sam Slom (R, Diamond Head-Kahala-Hawaii Kai) voted for the Senate version with reservations but say they hope that a House-Senate conference committee will agree to just extend the shield law.
Without a free press and the ability to protect whistleblowers, Ihara said, "It’s like tying your hand behind your back."
Slom said the examples that Hee used to illustrate that journalists make errors do not address the need for a shield law, which is to protect the confidential sources of information in the public interest, such as government corruption.
Hee had handed senators copies of the famous photograph of a beaming President Harry Truman holding up the Chicago Daily Tribune with the headline "Dewey Defeats Truman" after Truman won in 1948.
Hee also shared copies of an Advertiser article on KITV’s inaccurate report of the death of Hawaii island rancher Larry Mehau in 2007.
Hee said afterward that he used the examples to challenge the presumption that information from journalists is accurate, and thus worthy of broad legal protection.
"It’s clear that just because it’s from a journalist does not necessarily mean therefore it’s accurate," he said. "Now I grant you that most of the time it’s accurate, but there are times mistakes are made. After all, we’re human beings."
