Media: Shield Law Bill ‘Worthless’ After Senate Committee Amendments
鈥淎n embarrassment to the state of Hawaii.鈥
That鈥檚 how prominent First Amendment attorney Jeff Portnoy described the changes state senators made Wednesday to a law protecting journalists from revealing their sources.
鈥淭his bill is worthless now,鈥 he said after the Senate Judiciary and Labor Committee passed amendments to gut protections reporters have had for the past five years.
Portnoy represents a coalition of 22 media outlets that want the Legislature to simply make the current shield law permanent before it sunsets June 30.
Instead, Sen. Clayton Hee, who chairs the committee, put forward a drastically different version of that was not posted on the Capitol website as is customary or distributed to committee members prior to the vote.
The few protections left in the latest draft would only apply to traditional news organizations. The shield law would not apply to documentary filmmakers, bloggers or online news outlets like Civil Beat.
The amended bill would no longer protect journalists from being forced to reveal their notes or any unpublished information. And it broadens the cases in which they would have to disclose information or a source.
The current law says reporters only have to reveal information or a source when it鈥檚 material to the investigation, prosecution or defense of a felony. The amended version expands this to include potential felonies, serious crimes involving unlawful injury to persons or animals, and civil actions.
鈥淚f they pass this law we鈥檙e going to go from the best to the worst in the country,鈥 University of Hawaii journalism professor Gerald Kato said, noting that Hawaii鈥檚 law has been considered as a model for a federal shield law.
Sen. Clayton Hee comments on legislation.
Calling it a 鈥渂alanced approach,鈥 Hee said he based the amendments on recommendations from the ACLU, attorney general鈥檚 office and Judiciary鈥檚 evidence committee.
ACLU wouldn’t comment, but Kato said Hee “disingenuously” cited ACLU and the Judiciary committee and that neither supported the changes.
The most recent testimony on the bill from the ACLU urged the committee to strengthen the protections for journalists by limiting the exceptions in which they would have to disclose information.
“The main reason to have a media shield law is not simply to protect those journalists who face a subpoena, but to strengthen the exchange of information between journalists and their sources in the first place (so as to promote communication of ideas and information to the general public),” Dan Gluck, ACLU senior staff attorney, said in his March 28 testimony. “If journalists and informants know that they will be covered by the media shield law, the public benefits by receiving high-level, high-quality reporting.”
The AG has been critical of the current shield law, calling it overly broad and vague.
The AG has testified that the shield law should not apply to bloggers and non-traditional journalists. And the office also doesn鈥檛 want the law to protect unpublished information that isn鈥檛 likely to lead to the identification of a source.
The Standing Committee on the Rules of Evidence recommended in a report that the Legislature make the shield law permanent. The report suggested lawmakers revisit sections concerning bloggers, defamation and journalists’ unpublished information.
It鈥檚 unclear what recommendations in the amended version came from the ACLU. Gluck said Wednesday that he hadn鈥檛 seen the latest draft so couldn鈥檛 comment on it.
Portnoy said if the bill isn鈥檛 changed back to its original form or close to it in conference committee, he will push for it to be killed instead. If it passes the Legislature in its current form, he said he will ask Gov. Neil Abercrombie to veto it.
鈥淢y clients would be 1,000 times better off without this bill,鈥 he said.
Portnoy was particularly displeased with the process by which the bill was amended. He said it was 鈥渙utrageous鈥 that Senate committee members would vote on the amended bill without seeing it first.
Sen. Slam Slom was unhappy with the way it went down too, noting that the five-member committee had to base its vote on Hee鈥檚 explanation of the changes.
Slom and Sen. Les Ihara support the original version of the bill, which just removes the sunset provision and leaves the rest of the law intact. They voted for Hee鈥檚 amended version with reservations on the chance it will be changed back in conference committee later this month.
鈥淚 don鈥檛 think the public realizes the impact this has on them 鈥 just like with the state budget,鈥 Slom said.
Stirling Morita, who heads the , said the shield law is important because it allows the media to delve into stories without having to worry about having to answer for every source that’s unattributed or unnamed in an article. He said this enhances the public鈥檚 right to know because some sources will not come forward with critical information without being guaranteed anonymity.
Prior to glossing over the amendments in the latest version of the bill, Hee passed out to his committee members copies of a photo showing a person holding up a newspaper declaring Dewey defeated Truman in the 1948 presidential election. And he also used as an example of media lying the erroneous TV news story a few years ago about the death of a Hawaii rancher.
Slom called Hee out on his examples, saying they have nothing to do with a shield law.
Hee briefly backtracked, saying the photos were only meant to show that the media makes errors.
Noting that society has moved into an era of electronic journalism, Slom told Hee that the shield law should afford protections to these reporters.
Slom also pressed Hee on whether the state鈥檚 current shield law already forces journalists to disclose their sources when it involves certain serious crimes. Hee said he didn鈥檛 know, and quickly steered the discussion toward a vote.
Sens. Mike Gabbard and Maile Shimabukuro voted in favor of the amended bill, but didn鈥檛 say a word.
Read the amended version of House Bill 622 here:
