Why Hawaii Legislature Should Renew Shield Law
Hawaii Gov. Neil Abercrombie this year could be faced with the decision whether to allow reporters in Hawaii to protect the confidentiality of their sources.
Journalists widely consider it essential for a free and vibrant press that there be laws to shield them from having to reveal who provided them with information or having to cough up leaked documents. But Abercrombie has opposed such “shield laws” as a state lawmaker in the ’70s and as a congressman in the ’90s.
Abercrombie was the only Democrat in the U.S. House to a bill that would have protected the confidentiality of reporters’ sources in most federal court cases.
Hawaii’s shield was signed in 2008 by then-Gov. Linda Lingle after passing both houses of the Legislature unanimously. The vote made Hawaii the 36th state with a shield law.
But it was written with a sunset clause and will expire this summer if it’s not extended in this legislative session. The comes up for consideration after the WikiLeaks case angered many, creating a climate where there may be less sympathy for the needs of the press.
The state’s shield law has been during a trial. But there’s no way of knowing how often it came up in private discussions between news organizations and government authorities or private litigants. Once invoked privately, such measures tend to be a deterrent to further, expensive legal efforts.
The issue of confidentiality occurs frequently on sensitive stories, especially when powerful interests are being challenged. It’s common for reporters to be asked to keep confidential the name of a person who provided them information or documents. It’s often a condition set by people who want to provide reporters with information. Whistleblowers are fearful of losing their jobs, but feel compelled to act because they see something wrong within their own organization that they think the public needs to be aware of.
Without a shield law, journalists have to be circumspect about the protections they can afford people, because they don’t know what a court will decide. With a shield law, the ground rules are much clearer and journalism can be more robust.
Hawaii’s law protects the identity of sources and the content of news gathering materials in most cases, but is not an absolute shield for journalists, acording to the Reporters Committee for the Freedom of the Press. When it comes to felony cases and civil defamation lawsuits, if there’s no other source of the information and it’s necessary to the charge, the privilege doesn’t apply. If a journalist were to witness a crime, it also would not apply.”
Shield laws do not provide journalists with absolute protection. According to the , Hawaii’s law does protect the identity of sources and the content of news gathering materials in most cases. But when it comes to felony case and civil defamation lawsuits, if there’s no other source of the information and it’s necessary to the charge, the privilege doesn’t apply. If a journalist were to witness a crime, it also would not apply.
This may seem like a special privilege for the press or a small issue when compared with the economic challenges facing the state, but the Legislature should step up and make permanent a law that it has tested for the past three years.
If it fails to do so, it will be a blow to the strength of our democracy.
