For the last five years, journalists and those who provide them information have enjoyed one of the strongest legal protections in the nation. Of the 40 or so states in the U.S. that have so-called Shield Laws, Hawaii had one of the best–it said writers and reporters for newspapers, magazines, online news sites and blogs could do their work without having to worry that prosecutors would subpoena their notes and unpublished materials.
Now those days seem to be coming to an end. The Hawaii state Legislature (and specifically the Senate), which had only recently acted so generously towards those who report the news, is now moving through HB 622, a bill that, in the view of two of the state’s leading shield law advocates, is worse than having no journalist protections whatsoever.
“My clients would be better off with no bill,” media attorney and shield law advocate Jeff Portnoy said in an April 4, 2013 Associated Press story on the bill. “I’d rather go to court and argue all the cases than have this.”
Gerald Kato, an associate professor of journalism at the University of Hawaii who has spent many years fighting for reporters’ access to government and protection from prosecution, told me that Portnoy’s right.
“It’s pretty awful,” Kato said. “I agree with Jeff. Unless this law is changed–back to what it is now–in conference, we’d be better off without a law.”
Obviously, this was how journalists–who had first proposed HB 622–hoped things would turn out. They were concerned with the fact that the current shield law had a sunset provision, meaning it would expire at the end of June. So they put forth a bill that would make the shield protections permanent.
First as it moved through the state House of Representatives, and now the state Senate, the bill began to change. Certain exemptions on subpoenaing reporters found their way into amendments on the House said. Then, when it reached the Senate Judiciary and Labor Committee, chaired by Senator Clayton Hee (D, Kaneohe), whole protections suddenly vanished. If the bill passes as is now written, newspapers and magazines in business for less than a year, bloggers like investigative reporter Ian Lind and online news sites like Hawaii Reporter and Honolulu Civil Beat would no longer enjoy protection under the shield law. Ironically, the bill would still protect this paper, which has been published since 1996.
By returning the state’s shield law to 1950 in journalistic history (indeed, Hee referenced the Chicago Tribune’s infamous “DEWEY DEFEATS TRUMAN” headline in 1948 to rationalize his view that that media made errors), the Senate is going out of its way to miss the whole point of why we have a shield law. It’s a point Kato made explicitly in his written testimony, presented to Hee’s committee during its Mar. 28 hearing on the bill.
“But, our focus on who is a journalist is misguided,” he wrote. “This law is not about protecting journalists–traditional or otherwise–some of whom we may like personally or politically, others we may not. The underlying public policy of this law is to encourage sources, whistleblowers, for example, to disclose truthful information to the public so that the public will have full access to information it needs to meaningfully engage in the life of the community. I believe a strong Shield Law is a means of fighting public apathy.”
See, shield laws encourage people who work for government, law enforcement, the military, big business–or any organization, really, that is not dealing with some internal corruption or malfeasance in a just manner and would punish employees for speaking out–to make their concerns public. Of course, when you look at shield laws that way, it’s surprising that any state legislature would pass one.
Which brings me to this prediction: if HB 622 passes in its amended form and gets signed by Governor Neil Abercrombie–or even if it doesn’t and the whole shield law is allowed to expire in June–there shouldn’t be too instances of judges jailing reporters for refusing to hand over unpublished notes or source identities. But if all a potential whistleblower has for protection is a reporter’s assurance that he or she would rather go to the slammer instead of revealing a source’s identity, then there are going to be a lot few potential whistleblowers out there. And that’s a depressing thought for anyone who reads the news.
Indeed, I found it so depressing that I said as much to Kato near the end of our interview.
“You’re depressed,” he said. “I’m angry!”
Photo: Biswarup Ganguly/Wikimedia Commons