National reports on government snooping on journalists underscore the need for a media shield law.
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Hawaii’s shield law is in its final days thanks to the intransigence of state Sen. Clayton Hee with an assist from the Attorney General in their desire to emasculate a robust law that is about protecting the public’s right to know and maintaining a healthy democracy. The irony of the situation is that debate is just beginning on enacting a federal shield law following revelations about the Justice Department’s subpoena of telephone records from The Associated Press and federal warrants for emails of a Fox News reporter.
Hawaii’s law is a model for a federal law and we have no doubt that it is among the best of the 39 states and the District of Columbia that have statutes protecting journalists, confidential sources and unpublished information. Hawaii’s law is the first in the post Internet era to address protections for digital media and non-traditional journalists. And it will become the first state shield law ever repealed.
The fact that it sunsets on June 30 is a sad commentary on the myopia of media baiters such as Hee, who seems to have lost all sense of perspective in dealing with journalism, journalists and a free press. In a reckless desire, it seems, to punish the press, he conveniently ignored the fact that the primary purpose of a shield law is to advance First Amendment values by encouraging sources to disclose information of public concern.
This got lost in the debate at the Legislature, highlighted as it was by Hee distributing pictures of the 1948 headline of “Dewey Defeats Truman” as an example of media lies and his clear lack of concern for the role of journalism in a democracy. The Attorney General added to this by using fears of “bloggers” and an irresponsible press to back Hee’s efforts.
We tried mightily to present the Legislature with the reality of the relationship between journalists and sources. The reality is this: without reasonable protections, sources will naturally be reluctant to reveal information to journalists. Sources don’t want to be identified because they have good reason to fear retribution or may simply not want to be connected to a controversy. Such fear gives meaning to the abstract concern of a “chilling effect” on the flow of information.
The Associated Press, for example, is afraid that the seized phone records of its reporters will have just that effect. Thousands of people show up on those records, many, perhaps most, maybe all, have nothing to do with the leaks under investigation by the Justice Department. The Justice Department now knows whom the AP reporters have been talking to whether it’s an innocuous conversation or important information about other stories. You can be sure that the next time an AP reporter calls a source, confidential or not, he will think twice, maybe three times about talking to that reporter or saying much more than reciting the official record.
“A reporter is no better than his source of information,” U.S. Supreme Court Justice William O. Douglas once observed. “Unless he has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression.” Douglas warned that this will inevitably lead to a situation in which “the reporters main function in American society will be to pass on to the public the press releases which the various departments of government issue.”
A chilly wind is blowing, the press feels it, and so, too, will the public. This is the “real world” of journalism; not the caricature drawn by critics of shield laws. Reporters don’t often get to deal with dramatic revelations as in All the President’s Men or the Pentagon Papers, but they do deal with sources every day. Most go on the record, and that’s as it should be. Sometimes a source will want to be confidential and unburden herself of skullduggery and that’s the only way she’ll talk. Sometimes, a source will point a reporter in the right direction to get a story. Sometimes a source will get it wrong so the reporter needs to be careful about whom to trust. This is all part of newsgathering. If we’re going to have aggressive, tough-minded and informed reporting locally and nationally, we’re going to have to make sure that protections are in place to prevent government “intrigue and aggression” as Douglas so aptly puts it.
Gov. Neil Abercrombie in the past has taken the position a shield law is unnecessary because the First Amendment provides all the protection journalists need. In principle, we agree. But the U.S. Supreme Court says otherwise. More than 40 years ago, the court ruled that the First Amendment offered limited protections for journalists. Fortunately, Hawaii courts have long supported sensible free press rights, and we hope they continue to do so. Moreover, adoption of shield laws by most states suggests there is still broad support for protecting journalists and the important work of gathering and disseminating news and information.
No law, of course, can guarantee that the press will always be responsible, fair, accurate or balanced. As the late U.S. District Judge Sam King said, “A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective.”
Freedom of the press comes with a cost. Nonetheless, a strong shield law is a reflection of how much society values full and free flow of information to the public consistent with America’s tradition of addressing what ails society by access to more information, not less.
A strong shield law, we believe, will do that. Perhaps Hawaii’s Legislature will one day realize that it was a mistake to let our shield law sunset. If there is any hope, it is that Congress avoids Hawaii’s mistakes and engages in a serious attempt at fashioning a law that is sensitive to maintaining a free and independent press in the 21st Century.
About the authors:Gerald Kato teaches Journalism at the University of Hawaii at Manoa. He is a former newspaper and television reporter in Hawaii. Jeffrey Portnoy is a Honolulu attorney with the Cades Schutte law firm who has long represented First Amendment and media interests.
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