A free press is a bedrock principle of our democracy. But a bill passed by the House Judiciary Committee threatens to erode that foundation with provisions hazardous to journalists and, by extension, the public’s right to know.

It must not be allowed to stand as is.

To understand why, it’s important to understand the history of how we got to this impasse. In 2008, the Legislature overwhelmingly supported a bill creating what’s known as a “shield law” to protect journalists from being forced to reveal the names of confidential sources. Then-Gov. Linda Lingle signed it into law as Act 212.

reporter's notebook in focus

Chad Blair/Civil Beat

The act was the product of good faith negotiations and compromise between news media representatives and Mark Bennett, the attorney general at the time. It became a law that was praised as one of the best in the nation and seen as a model for a federal shield law.

But jut before it got out of a Senate-House conference committee, lawmakers inserted a sunset provision that automatically repealed the law in the absence of further action. That’s caused endless mischief as demonstrated two years ago when the antics of Sen. Clayton Hee, aimed at gutting the law, resulted in its death.

Hee is no longer in the Senate and shield law advocates returned this session hoping to fully restore Act 212. But, House Judiciary Chair Karl Rhoads has taken a bill that would have done just that and is adding a series of amendments, which dilute protections to such an extent, that, in its current state, House Bill 295HD1, ends up doing more harm than good.

The most egregious change involves “unpublished information,” or information gathered but not used in a news story. The shield law that the news media agreed to includes comprehensive protections for confidential and non-confidential information, but in a reversal of its earlier negotiated position, the Attorney General’s Office now says protections should be limited to information that would lead to the identity of confidential sources.

Rhoads is embracing the Attorney General’s argument that if there’s no confidential source involved, unpublished information – such as news reporters notes, or a TV stations video outtakes — should be disclosed, under penalty of imprisonment or a fine.

This is misguided and simply ignores the reality of newsgathering, and it is a profound step backwards from hard-fought court cases won by the news media over the past 30 years. In addressing the issue, the First U.S. Circuit Court of Appeals said:

“We discern a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes and other unused information, even if non-confidential, becomes routine and casually, if not cavalierly compelled. To the extent that compelled disclosure becomes commonplace, it seems likely indeed that internal policies of destruction of materials may be devised and choices as to subject matter made, which could be keyed to avoiding disclosure requests or compliance therewith rather than to the basic function of providing news and comment.”

The 9th Circuit recognized news media interests in fighting subpoenas for such information, including “(the) threat of administrative and judicial intrusion into the newsgathering and editorial process” and “the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or a private party.”

Such concerns are not unfounded, including in Hawaii. TV stations here are frequently asked for outtakes from lawyers who find it easier and cheaper to force reporters to hand them over rather than conduct their own investigations. At least one TV station has been advised to destroy outtakes and notes after a story has aired, in the process erasing a historical record and footage, which could be newsworthy in the future.

State courts, too, have weighed in on this matter. A state judge in 1994 ruled The Honolulu Advertiser did not have to surrender unpublished non-confidential photographs to a coconut-tree accident victim who was planning to sue the city, saying the victim failed to demonstrate that the photographs were necessary or critical to her claim, or that the information was unavailable from other sources.

That was a case won by First Amendment attorney Jeff Portnoy, who’s made it clear in testimony before the House Judiciary Committee that protection for unpublished information must include information not necessarily connected to confidential sources.

Portnoy describes unpublished information as the “lifeblood” of journalists. That is the reality for journalists engaged in gathering news and information for the public.

There are other problems with Rhoads’ amendment, but unpublished information alone is cause for concern. Make no mistake that what the House Judiciary Committee is proposing is fraught with danger for journalists and journalism in Hawaii.

As the House bill crosses over to the Senate, I hope lawmakers can embrace their highest ideals and fully restore Act 212. It is a law that worked well, there is no evidence of any problems while it was in place, it was supported by the Judiciary’s Evidence Committee and it has won widespread praise across the country.

Reporters worldwide are being imprisoned and worse in their effort to uncover facts and make them public. We once were a shining example of a state that supported that effort and were prepared to give meaning to the free flow of information and the public’s right to know. We can be again.

On the other hand, if the Legislature lacks the courage of conviction, then it should just kill HB295HD1 and forget about enacting a shield law. In the end, no law is better than a law which in Orwellian fashion weakens and removes protections on the pretext of protecting press rights.

Community Voices aims to encourage broad discussion on many topics of community interest. It’s kind of a cross between Letters to the Editor and op-eds. This is your space to talk about important issues or interesting people who are making a difference in our world. Column lengths should be no more than 800 words and we need a current photo of the author and a bio. We welcome video commentary and other multimedia formats. Send to news@civilbeat.org. The opinions and information expressed in Community Voices are solely those of the authors and not Civil Beat.

About the Author