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Last week, at a hearing on the state’s beleaguered media shield law, Sen. Clayton Hee handed out photocopies of an old Chicago Tribune front page. “Dewey Defeats Truman” played in large block type across the top of the daily paper.
By old, I mean old. 1948. Hee was dredging up the past to make a point about how the press makes mistakes — Harry Truman actually won re-election to the presidency by defeating challenger Thomas Dewey — and somehow that’s why a shield law is a bad idea.
Linking making honest mistakes to protecting a journalist from being forced to reveal a confidential source or turning over notes is kind of a head-scratcher in and of itself.
But what really got me thinking was whether Sen. Hee, who should be the most informed of citizens given his power over our lives, is actually stuck so far in the past that he has little clue about the news industry’s present state or where it’s going in the future. You could easily reach that conclusion by the way he’s rewritten the shield law and his definition of who or what a journalist is.
With the full Senate scheduled to vote on House Bill 622 Tuesday, and as this issue over media privilege has played out over the past few months, I’ve been pondering the distinction Hee and others are trying to make between “traditional” and “non-traditional” journalists.
Hee’s latest iteration of our craft as laid out in his amended version of HB 622 defines a journalist as someone who works for a traditional media operation — newspaper, magazine, radio or TV station or a wire service like the Associated Press. Reporters, editors, writers, photographers and videographers who don’t work for traditional media are apparently not really journalists in Hee’s mind.
Even more puzzling is his apparent belief that a newspaper or magazine has to have paid circulation to make it a legitimate news operation.
Well, Sen. Hee, welcome to the 21st century, a time when many traditional journalists are employed by “new media” companies, some of them the biggest and most serious news operations in the world. They’re not printed on paper and many don’t charge their readers a dime to access their content.
One of those is The Huffington Post. According to the most recent tracking reports, HuffPost draws more than 4 million unique visitors a day who account for 16 million page views a day. Last year, it was a Huffington Post reporter who was awarded The Pulitzer Prize — traditional journalism’s highest honor — for his reporting on the lives of seriously wounded veterans.
“The fact that technology continues to lower the barriers to entry and allows for more journalism is a good thing, not something to be legislated against,” says Arianna Huffington, the website’s iconic founder.
I sent Huffington a copy of HB 622 and Hee’s amendments, along with recent news coverage of the debate over the bill. I accomplished this via email, with electronic links to the legislation itself as well as the stories. In Hee’s world, I guess a printed copy of the bill and clips of news stories would have to be mailed or faxed.
Hee has said that online news operations like Civil Beat would be covered as a magazine because, under his definition, that includes news outlets that are “digital,” have paid circulation (our subscribers) and have been in business at least a year.
“It sounds as though they have been out of touch in terms of what has been happening for the last decade,” Huffington told me in a phone interview.
She noted that the convergence between traditional media and new, cutting-edge operations has been underway for many years. Publications like Huffington Post are doing more and more of the journalistic heavy lifting — investigative and watchdog reporting as well as covering communities to their fullest.
“Really, this hybrid future is what journalism is going to be about,” she said, calling policy decisions that don’t recognize the change in the industry “self-defeating.”
To define journalism or a journalist as someone who works for a publication that charges for access is “really obsolete,” Huffington said.
“We are all experimenting with different revenue models,” she said. “To make the business model the basis on which journalists are granted protection flies against the definition of what journalists are all about.”
Jonathan Hart, a Washington, D.C., attorney who specializes in media and information technology, is also general counsel for the Online News Association, an organization of journalists who work primarily online. I sent him the legislation, too. Same reaction.
Hart says it seems more sensible to define journalists by what they do, not who they are. “I believe it’s more useful to look at the activity in which a person is engaging and to determine whether that activity is of the type that should fall within the (scope) of the shield law.”
As an example, he pointed to a congressional measure introduced by the late Pennsylvania Sen. Arlen Spector in 2009. Under that bill a “covered person” was someone “with the primary intent to investigate events and procure material in order to disseminate to the public news or information … or other matters of public interest,” among other criteria — things typically associated with journalism.
Hart read the latest version of HB 622 and said it wouldn’t seem to cover many journalists who write for digital publications since they’d have to have paid circulations and be in business for at least a year.
Hart called shield laws “invaluable.”
“By protecting journalists from being compelled to disclose protected information, including the identifies of confidential sources, shield laws encourage the free flow of information, which is essential to the proper functioning of a democracy,” he said.
Ian Lind is a well-known local blogger. He’s also one of the most traditional, old-school journalists I’ve met. A former investigative reporter for the Honolulu Star-Bulletin, Lind prefers to rely on the documents he is so adept at digging out to break news and hold policymakers accountable. He is most definitely not an ideological navel-gazer.
Lind says Hee’s definition of journalists makes “corporate newspaper journalism” the standard for all others. But he’s quick to point out that when the First Amendment was written, there were no corporate newspapers. Journalists then were like the bloggers today — someone with something to say standing on a street corner and handing out flyers they’d printed to people passing by.
“I can see Anne Frank sitting in the attic writing and memorializing what’s going on,” Lind said. “Is she a journalist? Because she’s capturing a historical moment.”
Lind prefers the definition found in the existing law, the one passed five years ago that has quietly existed without trouble or even much of a trial. It’s been invoked once in the last five years by a Big Island videographer.
Now, a journalist is defined more broadly — in the more traditional way, of course, but also like this:
The individual has regularly and materially participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public by means of tangible or electronic media;
The position of the individual is materially similar or identical to that of a journalist or newscaster, taking into account the method of dissemination;
Lind notes the current definition combines elements of professional experience and training with the job that is being done. “I thought that was a well-crafted approach and one our Legislature should be proud of.”
Hee told people gathered for his committee hearing last week that the amended bill was the result of input from the ACLU, a Judiciary committee and the Attorney General’s office. But the big push for changing the law has come from Attorney General David Louie who wants journalists to reveal sources in a broader range of criminal actions, not just the most serious felonies as it is now. He also wants reporters to reveal sources in civil cases. He wants them to turn over notes and other unpublished material. And he doesn’t want bloggers protected.
Lind lays much of the blame for the gutting of the shield law on Gov. Neil Abercrombie, who he points out could have reined in Louie if he’d wanted to.
But Abercrombie is not known as a friend of the press or shield laws. As a congressman, he was the only Democrat in the U.S. House to vote against a bill that would have protected the confidentiality of reporters’ sources in most federal court cases.
“The governor was the swing vote here,” Lind said. “The governor let the AG lead the charge to roll it back.”
Like Lind, I consider myself a traditional journalist, too. I am a stickler for old-school practices and ethics. I just happen to find myself in a world without newsprint or barrels of ink.
The traditional me has been reluctant to weigh in on the Legislature’s political trouncing of the shield law, despite the urgings of Stirling Morita, the Society of Professional Journalists dedicated Hawaii leader. The conflict of interest is just as real as it is when a lawmaker votes for a bill that benefits his own bottom line.
But the shield law is too important to let the Senate vote without hearing from some of the traditional journalists who have found themselves in a changing world. Senators, including Clayton Hee, need to hear their voices.
“As the definition of what constitutes journalism progresses, this dangerous bill goes the other way,” Arianna Huffington says. “This is a law that would have been outdated years ago, and is only more behind the times today.
“In today’s world, with the multiple crises and challenges we face, we should be adding more protections for journalists, not eroding them. The effect of a law like this means that citizens will be less safe and more vulnerable to abuse, fraud and injustice.”