Barring some last-minute legislative maneuver, Hawaii’s shield law protecting journalists from disclosing confidential sources and turning over their notes will expire June 30 since lawmakers failed to agree on a bill to renew it Tuesday.
Earlier in the day the House passed an amendment on the floor to extend the current law another two years, but the Senate wasn’t having it. In a 16-9 vote, senators passed the draft of House Bill 622 that was agreed upon in conference committee last week.
Rep. Scott Saiki introduced the amendment, saying the current law allows journalists to ascertain and report the truth. He said reporters should be able to do their job without fear, adding that a two-year extension would give the Legislature additional time to work out any revisions.
Members of a coalition of media outlets have lambasted the conference draft because it significantly watered down the current law by excluding protections for non-traditional journalists and greatly expanding the exceptions for law enforcement to subpoena journalists and their unpublished information. Shield law coalition members were split though on whether they should urge lawmakers to just kill the conference draft or pass it as is and try to strengthen it next session.
Rep. Gregg Takayama, a former Honolulu journalist, said the House floor amendment would do what the conference draft would not.
He recognized that some of his colleagues feel reporters don’t deserve such protections because they can be “outspoken troublemakers.” But he said that is exactly the reason the Legislature should pass the bill, noting the nation was founded on the principles of a free press that questions government authority.
The conference draft protected traditional journalists and their notes under limited circumstances. The number of exemptions law enforcement could claim to subpoena notes or other information from journalists was expanded from only serious felonies to include potential felonies and all civil cases.
The conference draft further limited who could claim the privilege, excluding non-traditional journalists such as bloggers and documentary filmmakers. It also would have required journalists to work for publications that have existed at least a year and have a paid subscription, effectively cutting out free online news sites such as Huffington Post and free papers like Honolulu Weekly.
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. Hee said he based his changes to the bill in part on the AG’s advice.
Nathan Eagle/Honolulu Civil Beat
Sens. Les Ihara and Clayton Hee talk before session started, April 30, 2013.
Sen. Les Ihara said he tried to get the Senate to consider the House floor amendment in caucus, but the request was shut down.
“This is a step backwards,” he told Civil Beat. “With the bill dying, I’m hopeful that we’ll learn about the world of journalism in the 21st Century and craft a shield law that addresses the current state of journalism which includes non-traditional journalists.
“With journalism as the fourth estate, the government should be enabling its contribution to democracy,” Ihara said.
Sen. Sam Slom, who along with Ihara unsuccessfully fought the changes Hee made in the Judiciary Committee, said Hawaii has one of the best shield laws in the country. He said it provides a means of investigating corruption in government, business and unions in this state.
“To simply not extend the sunset date — instead crippling the newly developed electronic media — is really a shame,” Slom said.
The Senate vote on HB 622 was deferred throughout the day, first in the morning and then again in the afternoon.
Emails were flying between media outlets with updates throughout the day.
Jeff Portnoy, a prominent First Amendment attorney who represents the shield law coalition, sent one out that said, “It’s now or never.” He told media outlets at one point that they had an hour to persuade the Senate to go along with the House amendment.
Two small groups of senators formed during their recesses before decision-making on the bill — one around Hee and another around Senate President Donna Mercado Kim.
The Senate finally took up HB 622 as one of its last bills of the day, passing it with little fanfare — effectively killing it due to the House’s amended version — as the rain began to fall outside in the open Capitol rotunda.
The legislative session is set to end Thursday.
Stay Up To Date On The Coronavirus And Other Hawaii Issues