April 12, 2013

A proposed Hawaii law would limit the use of anonymous sources and would remove protections on other reporting done by journalists. According to some Hawaii journalists, the law, now passed by the state’s House and Senate and awaiting conference committee, would limit their ability to report on some important or high-stakes stories.

“The law would go from one of the best in the country (in terms of breadth of coverage) to probably the worst – under the Senate version,” said Stirling Morita, president of the Hawaii chapter of the Society of Professional Journalists, in an email interview. “There virtually would be no Shield Law.”

Hawaii’s 2008 shield law allows journalists to claim reporter’s privilege in keeping their sources secret in most civil cases (except defamation cases) and also provides qualified reporter’s privilege in criminal cases. The protections afforded by the law apply to reporters at all publications. It’s set to expire on June 30. This January the Hawaii House took up a measure to reauthorize it.

“We had hoped … [the House would] treat this legislation as a housekeeping measure” and only remove the sunset provision, said University of Hawaii professor Gerald Kato in a phone interview.

That wasn’t what happened.

Hawaii Sen. Clayton Hee speaking in February 2011. Hee proposed changes to Hawaii’s reporter’s law that would limit its protection to publications with specific business models. (AP Photo/Eugene Tanner)

In committee, legislators introduced new amendments to the law. The amendments made reporter’s privilege in civil cases beyond defamation cases qualified, not absolute. That means that in a civil case, the reporter would have to meet certain standards to be able to claim reporter’s privilege.

The 2008 law was used by a Hawaiian filmmaker, Keoni Alvarez, in a civil case when he was subpoenaed to hand over footage he had shot of Hawaiian burial customs and a protest that was later relevant to the lawsuit. Alvarez was not one of the parties involved in the suit and claimed reporter’s privilege in refusing to give the plaintiff his unpublished footage. Under the amended bill it’s unclear whether Alvarez would be able to claim reporter’s privilege.

The bill also applies additional qualifications to the privilege in criminal cases and only said those who “validly” invoked the privilege would be protected.

After the legislation left the House, Sen. Clayton Hee added other amendments that attempt to define not just journalists but news organizations.

Hee’s amendment says news organizations must have subscribing members or be attached to a specific business model. For example, a “newspaper” is defined as a publication that puts out at least two issues a year, and would also need to be distributed on a subscription basis. By the terms of the Senate bill, The Huffington Post, for example, would probably not be considered a newspaper, magazine, wire service, or any other journalistic entity as defined by the bill, since it is a free publication.

In his speech to the Senate Judiciary Committee when he introduced the bill with the amendments he drafted, Hee displayed a 1948 photo of Harry Truman holding a copy of The Chicago Tribune bearing the headline “Dewey Defeats Truman,” and discussed other examples of journalists making errors in reporting, such as a 2007 report from Hawaii television station KITV News that a prominent businessman had died, which was later revealed to be incorrect.

“I don’t think the shield law is a mechanism which necessarily prevents errors,” Hee said in a phone interview. The point he was trying to illustrate, he said, was just because a report is aired or a news articles appears in print “does not make it accurate.”

Attorney Jeff Portnoy represents the Shield Bill Coalition, which supports only reauthorizing the original law. The House amendments are “still potentially livable,” Portnoy said.

But Hee’s amendments, Portnoy said, are “designed to gut the shield law.” Portnoy said it would be better to simply allow the 2008 law to expire than pass the new bill with the Senate amendments. “We’re better off letting courts determine the scope of the privilege,” he said.

When asked to address those who see shield laws as protections for sources who wish to remain anonymous, Sen. Hee said, “I don’t say too much to anybody who says that.”

Kato, who helped draft the 2008 law and is a member of the coalition, says Hee’s amendments “would turn a shield into a sword.”

Linking business models to legitimacy

The precedent for reporters’ privilege in the U.S. was set in a landmark 1972 U.S. Supreme Court case, Branzburg v. Hayes. The case established conditions for when a journalist could be compelled to testify during a grand jury hearing, the closed-door, private hearings that establish whether someone will be charged with a crime. Since Branzburg, some states have codified reporters’ privilege or established a legal precedent for the privilege in state courts.

“It’s for the very fact that Branzburg was decided the way it was that we felt it was necessary to have a shield law,” Kato said.

In a phone interview, Honolulu Star-Advertiser Managing Editor Ed Lynch said his paper doesn’t use anonymous sources lightly.

“We don’t let people spout personal opinions anonymously,” he said. “It’s got to be factual information that we could not get otherwise and that we think is critical to telling an important story.” He added that any information gathered from anonymous sources is not merely accepted at face value.

“It’s important to note that we verify factual information given to us by a source who remains anonymous,” Lynch said.

Two Hawaii senators voted to move Hee’s bill to the Senate floor “with reservations.” Sen. Laura Thielen voted no.

“I think we’re being too traditional in our approach to what is journalism in the Senate version of the bill,” Thielen said in a phone interview. “I think we need to include online, digital media, nonsubscription and give the flexibility to journalists” who are looking for new revenue models, she said. “They’re not reaching people through those traditional models.”

Sen. Thielen said the bill comes at a time when journalism outlets are “casting about” for ways to earn revenue as the traditional models begin to die out. While traditional newspapers and magazines still abound, she said she was “not comfortable” setting a definition for journalists or their work that didn’t acknowledge that the field was changing.

“Under Sen. Hee’s bill, he’s trying to link your business model to whether or not you’re a legitimate journalist,” said Patti Epler, editor of Honolulu Civil Beat. Civil Beat is a subscription news publication that would be able to claim reporters’ privilege under the amended bill, but Epler said the proposed changes indicate that Sen. Hee is “out of touch” with what’s happening in the industry.

“There’s just so many things about online journalism that are exactly the same as the old print or broadcast or NPR world,” she said. “It just seems like he’s ignorant of what’s going on in the media world… You can be a very traditional journalist and work in what might now be considered a nontraditional media platform.”

The Star-Advertiser’s Lynch says if the shield law bill were passed, it would harm Hawaii journalism.

“Certain stories will not be told if a source cannot remain confidential,” he said. “It’s hard to explain to the layperson how devastating that would be to the free press in Hawaii.”

Others outside the Senate are continuing to lobby the Hawaii Congress to save the original shield law. The ACLU of Hawaii has released a statement criticizing the proposed changes, and Epler and Kato both wrote columns about the bill and how reporting has changed in the online era. For Kato, the debate is the culmination of years of work.

“I’ve spent five years working on this,” he said. “It would be a giant step backwards…Jeff and I especially worked so long and hard on getting a good law in place, to see it torn apart like this is just intolerable.”

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