Hawaii journalists are decidedly unhappy with the latest version of the state shield law that protects reporters from having to reveal sources and turn over unpublished material.

Now, they just want it to die.

The compromise on House Bill 622 that House and Senate lawmakers reached Thursday excludes protections for bloggers and free news sources.

The conference draft also greatly expands the circumstances in which law enforcement can subpoena journalists’ notes and require reporters to reveal their sources.

“The only thing we should’ve done with the best shield law in the nation is to remove the sunset so the law stays permanent,” Rep. Cynthia Thielen, who cast the lone “no” vote, said after the hearing. “Instead, the various amendments were really a way to hit back at the media and that’s not in the best interests of a free and public process.”

Hawaii’s shield law, which took effect in 2008 and has been touted as a model for a federal shield law, is set to expire June 30. The original version of HB 622, which a coalition of media outlets supported, simply removed the sunset provision.

Jeff Portnoy, a prominent First Amendment attorney who represents the coalition, said in a letter to lawmakers Thursday that Hawaii is better off without a shield law than passing the conference draft.

“I urge all of you to take a more reasonable and rational approach,” he said. “If you cannot find the political will to do this, then kill the bill and let the shield law sunset. Don’t pretend to protect journalism with an anti-journalism bill.”

The state attorney general’s office considers the current law “overly broad.” The AG doesn’t want it to protect non-traditional media or journalists’ unpublished information. The latest draft leaves non-traditional journalists out of the law’s protection but does include some protection for unpublished material like notes and outtakes.

Sen. Clayton Hee, who led the conference committee on the bill with Rep. Karl Rhoads, said he took the AG’s comments into account when he put forward the latest draft. He said he felt it was important to include definitions of terms like “journalist” and “news agency” in the law, as recommended by the Judiciary’s evidence committee.

“We thought that the Attorney General made a good case,” he said after the hearing, adding that the distinction between online and traditional news sources did not make a difference in determining the final draft.

Sen. Les Ihara missed the vote in conference committee Thursday, but has supported the original version of HB 622.

“In an era of electronic communication, they are applying the wrong reality to today’s shield law. It’s an outdated perspective,” he told Civil Beat. “It’s hurting a major part of the journalism universe.”

University of Hawaii journalism professor Gerald Kato was as frustrated with the conference committee’s draft of the bill as he was with the overall process.

“It is a 20th Century definition of journalists,” he said. “It doesn’t deal with the future of journalism.”

Unlike five years ago when lawmakers worked closely with journalists, attorneys and law enforcement to craft the current shield law, Kato said this time around it felt more like amendments were introduced and it was either take it or leave it.

“There was absolutely no give-and-take in this process,” he said.

Members of the shield law media coalition testified on the bill over the past several weeks as it worked its way through committees in the House and Senate, calling on lawmakers to simply make the current shield law permanent.

Rhoads said there was no intention to exclude anyone in the process.

“Conference is a very chaotic time, and I’m sure there are a lot of people who feel like they’re shut out of the process,” he said. “I met with various journalists throughout the process.”

The bill has to clear the full Legislature before it can become law. Rhoads said that vote will likely happen Tuesday.

Hee said he believes the Senate will be consistent with the version of the bill the conference committee passed.

“The position agreed to by the conference committee is a little bit looser than the Senate draft so it would seem to me the Senate might be inclined,” he said.

Rhoads said the current draft is a compromise by definition.

“It’s not my favorite bill. I’m sure it’s not Sen. Hee’s favorite bill,” he said. “If we didn’t do anything, the whole thing was going to expire on June 30. And I felt like the proposal we arrived at was better than the alternative.”

In a last-ditch effort, Portnoy said the media coalition put forward a compromise asking lawmakers to extend the current shield law another two years and create a task force to further vet it.

“This is a good faith proposal that we believe will avoid an embarrassing situation in which Hawaii becomes the first state to repeal its shield law or one of the drafts currently before you becomes law and Hawaii goes from a state with one of the best shield laws in the country to the worst,” he said.

Lawmakers may revisit the shield law next session.

“There’s always a possibility someone will introduce something new and I’ll have an open mind about it,” Rhoads said.

Meantime, media outlets and journalists are debating whether it is better to live with the latest draft or urge the Legislature to kill the bill.

Ihara said it will be hard to turn the bill around at this point unless advocates weigh in heavily. He said he hopes the corporate bottom line doesn’t prevent the mainstream media, who are all covered under the bill, from speaking out for online news sites and non-traditional media who would lose the protections they have had since 2008. (Civil Beat appears to be covered under the bill as a “magazine” since it’s published at least four times a year, has been in existence for a year and charges for a subscription.)

“Will the main traditional media stand up for journalism as a whole or are they going to look out for their own interests?” he said.

About the Author