Usually, we equate free speech with unfettered communication—the right to say what we want, when we want. But sometimes, and just as importantly, it’s about the right to withhold information.
Take the case of filmmaker Keoni Alvarez. For the past four years, Alvarez has been compiling footage for a documentary about Native Hawaiian burial rites. That’s a sensitive subject by itself, one rife with political, cultural and historical landmines, but things got even dicier when Alvarez was pulled into a dispute over the construction of a home on Kauai’s Naue Point. Attorneys for the man building the home, Joseph Brescia, tried to subpoena Alvarez’s interviews and raw footage and to force him to answer questions under oath.
That’s when the American Civil Liberties Union (ACLU) of Hawaii stepped in. Citing Act 210—better known as Hawaii’s “media shield law,” which was passed and signed last year—ACLU lawyers said Alvarez’s unpublished work and confidential sources were off-limits.
Specifically, Act 210 protects journalists (defined in a broad sense) against being “required by a legislative, executive, or judicial officer or body…to disclose, by subpoena or otherwise…the source…of any published or unpublished information…[and] any unpublished information.”
Given that relatively unambiguous language, Kauai Circuit Court Judge Kathleen Watanabe rightly sided with Alvarez and granted his request for a protective order. As a test case, the decision bodes well for journalists and other disseminators of information who want to use—and test the limits of—the media shield law.
“The media shield law can now be confidently asserted by journalists seeking to protect their work,” said ACLU attorney James Bickerton, who represented Alvarez, in a release.
Alvarez said the ruling allows him to uphold his integrity, and to maintain credibility with wary subjects. “[Without the shield law], people wouldn’t trust me and I wouldn’t be able to work on really sensitive projects like this one,” he said.
The right to guard sources is a sacred one in the media, but it’s also been tested many times. Journalists don’t always win, and even when they do, putting up a fight can mean serious consequences, including jail time.
Act 210 does place restrictions on the protections it affords. The law is void if there’s probable cause to suggest the person claiming the privilege has committed, or is about to commit, a crime. Also, if the person has observed the commission of a crime, they may protect their information only if “[t]he interest in maintaining the privilege…outweighs the public interest in disclosure,” or if “[t]he commission of the crime is the act of communicating or providing the information or documents at issue.”
Act 210 does protect journalists from fines or imprisonment for claiming its privileges, meaning they can assert their rights without fear.
And that’s what truly free speech is—speech that’s free not only from undue meddling or censorship, but free from fear. Maui Time Weekly