Well, that whole experiment with granting honest people in Hawaii who wanted to expose graft and incompetence in our state’s powerful organizations and corporations with very generous legal protections that allowed them to speak anonymously to investigative reporters was fun while it lasted. Such individuals, who risk termination and retribution by openly speaking out against corruption, provide the lifeblood of the best journalism can offer.
Since 2008, Hawaii state law allowed these individuals to tell reporters of all kinds–television, radio, newsprint, magazine and Internet–what they knew of injustices without fear that their identities would be exposed by overzealous prosecutors trying to force reporters to reveal their sources or even just unpublished notes and other information.
Like the time a couple years ago when the Maui County Prosecutor’s Office subpoenaed MauiTime, asking for all the IP addresses for a 24-hour period associated with online comments on a story about our publisher Tommy Russo getting allegedly assaulted by both members of Duane “Dog” Chapman’s security detail and a member of the Maui Police Department. No one can say for certain that the Shield Law protected us because the matter never made it to court (the county quietly withdrew the subpoena in June 2011), but having the law there was a great reassurance.
Now, thanks to Legislators in the state House of Representatives and the Senate who couldn’t resist messing with something that wasn’t broken, the Hawaii Shield Law–touted as one of the best in the nation–will die in June, returning our Great State to the days when the only protection for whistleblowers seeking to expose corruption was a reporter’s promise to keep their identities a secret even if thrown in prison.
No one person killed the law (known as HB622 this legislative session). Indeed, no single legislator, regardless of how powerful and entrenched he or she may be, could foul up something that wasn’t broken this bad.
The problem that caused all this was that the original Shield Law had a sunset provision–barring further action from the Legislature, it would expire at the end of June 2013. So reporters and their advocates in the state asked that the Legislature simply take the law as written and make it permanent.
What fools we were. Acting in response to requests from the state Attorney General’s office (which, like all law enforcement bodies, bristles at any and all restrictions on its behavior) to take away certain protections in certain court cases, the House began altering the law. It wasn’t what media advocates wanted, but it was certainly better than what eventually emerged from the Senate.
Much has been made of Senate Judicial Committee Chairman Clayton Hee‘s actions in the fight, and it’s hard to minimize his cartoonish contribution to this mockery. Anyone who holds up a copy of the 1948 Chicago Tribune, which famously reported that Governor Thomas Dewey had just been elected President of the United States as evidence that investigative reporters in Hawaii do not need protection from prosecutors has no business chairing a committee charged with overseeing media law, much less serving in government.
In any case, once the Shield Law emerged from the Senate, it was worse than a joke. Read it, and you’d think the Internet had never been invented. Not only were there even more instances where law enforcement could compel reporters to hand over their notes, but now publications that existed only online or employed business models that didn’t involve paid subscriptions (like MauiTime, Hawaii Reporter and Honolulu Weekly) were no longer even considered “news organizations” and were thus exempt entirely from any Shield Law protections.
Hawaii media advocates like attorney Jeff Portnoy and University of Hawaii Professor Gerald Kato were outraged. Given the choice of seeing the current law expire or having to deal with the ramifications from one of the rewritten bills actually becoming law, they publicly called for the whole thing to just die and let the courts sort it out in the future. The Legislature, which couldn’t make up its mind on the issue, gave them their wish.
If anything, all this does show the media in Hawaii has been remiss in one crucial aspect: it has conveyed far too much legitimacy on legislators (like Hee!), who have proven themselves to be at best ignorant of journalistic principles of free expression and at worst openly contemptuous of them.
Photo of Maui Community Correctional Center: MauiTime