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The Honolulu Advertiser
Posted on: Friday, August 24, 2007

Hawaii journalism shield law proposed

By Derrick DePledge
Advertiser Government Writer

Early drafts of a shield law being circulated at the state Capitol would protect journalists from disclosing the sources of both published and unpublished information in state courts but would not cover the emerging field of citizen bloggers.

The drafts identify journalists and former journalists of newspapers, wire services, magazines, and radio and television stations but do not mention Web logs or the Internet. The shield law protections, however, would apply to these journalists if their work appears on blogs or other Web sites.

State Rep. Blake Oshiro, D-33rd ('Aiea, Halawa Valley, 'Aiea Heights), and state Rep. Gene Ward, R-17th (Kalama Valley, Queen's Gate, Hawai'i Kai), who have written separate drafts, said their intent is to protect news gathering by professional journalists. Hawai'i is among a minority of states without reporters' shield laws.

"I want to make sure there is at least some legitimacy to it, because then I can see why a shield or privilege is necessary, because there is a public interest," Oshiro, an attorney, said of professional journalists. "When it comes to bloggers, they would still have their First Amendment rights to freedom of speech. That should be enough protection for them."

Ward, who became interested in a shield law after the subpoena of conservative Web site reporter Malia Zimmerman in a lawsuit over the fatal breach of Kaloko dam, also drew a line between professional journalists and bloggers.

By including former journalists in the definition, the shield law would cover Zimmerman, a former Pacific Business News reporter who now runs the Web site Hawai'i Reporter. It would also cover bloggers such as Ian Lind, a former Star-Bulletin reporter, and Hunter Bishop, a former reporter for the Hawai'i Tribune-Herald.

"We don't want to make it so broad that anyone can hide behind it," Ward said. "It's to legitimize the legitimate."

Thirty-three states and the District of Columbia have shield laws and many were written before the Internet gave voice to a growing number of citizen bloggers who may or may not follow traditional journalistic standards. Versions of a federal shield law proposed in Congress this year would cover bloggers who engage in news gathering, and some state courts have ruled that shield laws apply to bloggers, but clear definitions have become elusive with the new media.

Doug White, a former state House staffer who writes a blog on politics and government, said he is disappointed with the drafts.

"I'm a blogger who does not consider myself a journalist, but every so often I write original posts and I think that if in the process of gathering and disseminating a story in the public interest I were to use information from a source unwilling or unable to speak on the record then I should be able to offer anonymity to the source which would be respected by the courts," White said. "When it comes to the use of confidential sources, the public good served by protecting journalists is the same public good that would be served by protecting bloggers.

"Any shield law should keep that in mind."

Bishop said he is generally in favor of including bloggers in a shield law but sees a danger in, for example, potential witnesses in criminal investigations setting up blogs and calling themselves journalists to avoid testifying.

But he said a bigger concern is government defining who is a journalist and, in effect, licensing reporters. "That to me is the worst case scenario," he said.

The drafts by Oshiro and Ward are similar and would protect journalists from disclosing sources or other information in state courts or before the state Legislature, state departments or commissions, and county governments.

Oshiro's version would not protect journalists when there is probable cause they have committed or are about to commit a crime.

State Sen. Les Ihara, Jr., D-9th (Kapahulu, Kaimuki, Palolo), said he would show Oshiro's draft to the Society of Professional Journalists Hawai'i chapter and the Honolulu Community Media Council.

State Rep. Rep. Tommy Waters, D-51st (Lanikai, Waimanalo), the chairman of the House Judiciary Committee, said he would work with Oshiro and Ward and that his intent was to consider a shield law next session.

"I think this is a good start," he said of Oshiro's draft. "I like the idea of protecting journalists."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.