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Two local journalists recently were called to testify in the Billy Kenoi case, doing both of them (and Hawaii journalism) professional harm.
Another local reporter, Mileka Lincoln of Hawaii News Now, also was dragged into court this fall in a legal ploy that asked her to “authenticate her transcript” of an interview she conducted with murder suspect Steven Capobianco. This was similar to the strategy that lured West Hawaii Today’s Nancy Cook Lauer into the Kenoi trial.
Once on the stand, Lincoln reportedly was badgered by the defense attorney to the point where she finally invoked reporter’s privilege under the First Amendment of the U.S. Constitution to avoid further questioning about what she knew and how she knew it.
Similar to the Lincoln case, and almost on the same day, a New York Times reporter (Frances Robles) was called to the stand about a jailhouse interview she conducted.
Jonathan Peters, Columbia Journalism Review’s press freedom correspondent, wrote that he has noticed a recent surge of cases across the country involving such “compelled disclosure,” broadly attacking the reporter’s privilege to confidentially gather information.
This trend to throttle journalistic freedoms should alarm media institutions and legislators enough to compel them to immediately reinstate the model Shield Law that Hawaii had not that long ago.
Journalists already have a tough enough job, with industry contraction, low public trust in their work and former colleagues turning into lobbyists who harangue them for being “very aggressive” with the public officials they cover.
“(Lincoln) ended up being put in a very difficult situation. I’m not inclined to let any reporter go on the stand again.” — Bruce Voss, attorney for Hawaii News Now
As Peters of CJR explains, in a reporter’s case, the public generally considers news gathering as independent from official governmental inquiries. Sometimes, like in the case of a whistleblower, a source requests anonymity in exchange for revealing sensitive information of public interest. But almost all of the time, sources expect journalists to treat their thoughts and words with discretion and care.
Without that inherent trust between them, and without clear protection from unintended intrusion, sources would be even less likely to divulge information to journalists, leaving you, dear readers, in the dark, too.
An easy first step to address this issue, before it gets out of control and legally weighted to the point of no return, is to reinstitute the state’s robust Shield Law.
Colleagues of mine at the University of Hawaii — including Gerald Kato, the chair of the School of Communications, and UH Board of Regents member Jeff Portnoy — were architects of the original legislation, which protected journalists of all types, including bloggers, alternative media authors and all sorts of social media producers.
Kato said Hawaii has been the only state in American history to repeal its Shield Law. That happened when a sunset clause in the original legislation was allowed to expire due to squabbles over who was — and who wasn’t — a journalist as well as an insistence on the protection of nonconfidential materials gathered in the reporting process, such as notes and outtakes.
While the First Amendment generally protects journalists from unwarranted litigious harassment, it also has some loopholes in it that allow journalists to be called to the stand, like Lincoln and Lauer were.
Once on the stand, and in an adversarial position to either the prosecution or the defense, journalists are vulnerable to various attacks on their character and process, usually intended to root out the original sources of information but also used to fish for how and where journalists get sensitive material.
A search of its website found that Hawaii News Now apparently did not cover Lincoln’s participation in the trial (why not?). From reviewing her testimony and HNN’s coverage of the Capobianco murder trial online, though, it appears that Lincoln sporadically worked on the story, but so did others after her original piece ran, which included a transcript of her conversation with the murder suspect.
Lincoln declined to discuss her participation in this active case. But media law attorney Bruce Voss, who represents Hawaii News Now and KHON, said he has seen an increase in subpoenas of his media clients in the state, mirroring the national trend of compelling journalists to testify more often.
He said Lincoln only was advised to testify in this case because both the prosecution and defense had a verbal pretrial agreement to limit the questions put to the journalist to what appeared on air or on the HNN website. Once the case began, though, the defense attorney veered and decided to probe the news-gathering process, which Voss said crossed the line into a reporter’s privilege.
Because of this negative experience with Lincoln in this case, Voss said, he is going to recommend moving to quash any future subpoenas to his journalist clients that might have anything to do with their confidential news-gathering processes.
“(Lincoln) ended up being put in a very difficult situation,” he said. “I’m not inclined to let any reporter go on the stand again.”
Voss also said he supports reinstatement of the Shield Law.
Even though Lincoln’s piece included the full transcript, and she agreed only to testify that it was, in fact, what she heard in the conversation, Lincoln had to spend a couple of hours in court just to establish that she had talked to the person she claimed she had talked to.
Lincoln also had to explain the television station’s policy of only keeping interviews in the company computer system for a week. And how she had recognized the importance of the interview and saved the file to another computer to preserve it, but that computer crashed, and the interview was lost in the rebooting process. She explained to the jury that she had transcribed the interview in its entirety and didn’t note “the tone” of the responses, even though she was asked to interpret them. And so on.
The more into the weeds this type of questioning led, the more threatening this legal approach became for the editorial independence of HNN (and other local media). While this sort of testimony by either Lauer and Lincoln, on its own, could be considered inconsequential, when journalists start being called to testify on a regular basis, we should be concerned.
As shown by both of these cases, court testimony will never be just a simple act of authentication. Authentication easily can be handled by archivists. What really is at stake here is the constitutional protection of journalists to gather and publish information as they see fit, without governmental interference or threat of frivolous litigation.
A simple question about a quote quickly can lead to questions about why one particular source was chosen over another, and then to which other sources were contacted that were not a part of the coverage. It can lead into what questions were asked, why they were asked, and why a reporter did this and not that.
The reporting and editing process is not under the jurisdiction of lawyers and government officials. What American journalists decide to publish is — and always should be — entirely up to them.
Brett Oppegaard has a doctorate degree in technical communication and rhetoric. He studies journalism and media forms as an associate professor at the University of Hawaii Manoa, in the School of Communications. He also has worked for many years in the journalism industry. Comment below or email Brett at firstname.lastname@example.org.
Reader Rep is a media criticism and commentary column that is independent from Civil Beat’s editorial staff and does not necessarily reflect the views or opinions of Civil Beat.