Hawaii law to protect reporters studied
By Derrick DePledge
Advertiser Government Writer
By Derrick DePledge
Moved in part by the subpoena of a conservative Web site reporter in a lawsuit over the fatal breach of Kaloko dam, several state lawmakers are thinking about creating a shield law to protect journalists from disclosing information in court.
Thirty-three states and the District of Columbia have shield laws that give reporters varying degrees of protection from revealing the identities of sources or turning over notes or other material. The Hawai'i Supreme Court has ruled that reporters have no federal First Amendment or state right not to disclose confidential sources to state courts. But some legal experts believe reporters have a qualified privilege unless the disclosure is so important it outweighs protecting confidentiality in newsgathering.
Several lawmakers are researching a shield law for next session. They will have to determine whether reporters should have broad protection from disclosing newsgathering information or whether it should be more narrow, such as only protecting confidential sources. They will also have to resolve the troublesome question of how to define journalists.
The emergence of blogging and citizen journalism has expanded the news media beyond traditional newspaper, television and radio reporting, creating a debate about how to apply basic standards such as fairness and the use of confidential sources.
Attorneys for retired auto dealer Jimmy Pflueger, who have subpoenaed Malia Zimmerman, an editor and reporter at the Web site Hawai'i Reporter, have questioned whether she is a blogger who can legitimately claim a reporters' privilege if one legally exists. Pflueger, who owns land around Kaloko dam, is suing the state and private companies over dam oversight and wants to view documents and sources Zimmerman used in her reporting.
Zimmerman has been ordered by a Circuit Court judge to submit to a deposition and has turned over what she considers public documents. She is compiling a list of documents she considers privileged.
"I think the core issue is who is included in the definition of journalist and how far it goes into blogging," said state Sen. Les Ihara, Jr., D-9th (Kapahulu, Kaimuki, Palolo), who said he will be discussing a shield law with the Society of Professional Journalists Hawai'i chapter and the Honolulu Community Media Council. "Where do you draw the line?"
State Rep. Gene Ward, R-17th (Kalama Valley, Queen's Gate, Hawai'i Kai), who plans to meet with media attorney Jeff Portnoy about a shield law this month, said he was motivated by the Zimmerman subpoena. "That was the traffic accident that said to me, we have to put a stoplight there," he said.
State Rep. Tommy Waters, D-51st (Lanikai, Waimanalo), the chairman of the House Judiciary Committee, said he is interested in drafting a shield law and considers it is a First Amendment issue.
"We're talking about freedom of speech," Waters said. "I side with the Constitution."
State House Majority Leader Kirk Caldwell, D-24th (Manoa), state Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha) and state Sen. Brian Taniguchi, D-10th (Manoa, McCully), the chairman of the Senate Judiciary and Labor Committee, said they are open to a shield law. State Sen. Sam Slom, R-8th (Kahala, Hawai'i Kai), is also drafting a version.
Portnoy said, and several lawmakers agree, that a shield law will not have a chance at the Legislature unless the news media are unified and can agree on the content and definitions.
"This is not going to be a Malia Zimmerman fight. If I'm involved, it's because a significant number of journalistic groups ask me to get involved," said Portnoy, who is Zimmerman's attorney in the Kaloko case and has represented The Advertiser.
Active lobbying for a shield law by the news media, either through newspaper editorial pages or advocacy groups like the SPJ, could present the appearance of a conflict or the perception the media would be beholden to lawmakers for giving reporters special privileges.
"Whenever you go to a Legislature for a favor, you can pretty well expect that the next time they want to do something and you say they shouldn't be involved, they'll point to the shield law," Portnoy said.
Many veteran journalists believe reporters who cover politics or the Legislature should not lobby, but that the news media should be aggressive about protecting First Amendment rights.
"Newspaper editorials have historically championed open government and a free reporting environment," said David Shapiro, a former managing editor of the Honolulu Star-Bulletin who writes an opinion column and blog for The Advertiser. "Promoting the public's right to know is one of our primary obligations under the First Amendment protections we enjoy, and I don't see a conflict of interest.
"If we believe in our calling, it would be irresponsible not to speak out for the freedom to do our jobs without government intimidation."
PROTECTING THE PUBLIC
Lance Williams, a San Francisco Chronicle reporter who risked prison for refusing to reveal sources for stories about steroid use in sports, said he sees nothing wrong with journalists pushing for shield laws through editorial commentary.
"To me, shield laws are a measure to protect the public's right to independent info about their government. If the press won't stand up for the public's rights in this regard, who will?"
The U.S. Supreme Court's ruling on reporters' privilege, in Branzburg v. Hayes in 1972, found that reporters have no First Amendment right to refuse a grand jury subpoena to disclose information in criminal cases. But the court recognized that newsgathering does qualify for some First Amendment protection.
There is no federal shield law and courts have interpreted a qualified privilege differently. Courts have considered, when deciding whether to force reporters to disclose information or go to jail, whether the information sought is highly relevant to the case and cannot be found anywhere else.
The Hawai'i Supreme Court's ruling on the issue was in 1961, in Appeal of Goodfader, when it found that an Advertiser reporter had no First Amendment or state right to refuse to disclose a source who told him the personnel director at the city Civil Service Commission would be fired at a meeting.
State lawmakers said it may not be too difficult to draft a shield law using models from other states, but they anticipate problems in defining journalists.
Ian Lind, a former Star-Bulletin reporter and freelance writer and blogger, said shield law protections should be extended to bloggers if they engage in newsgathering and reporting. "There shouldn't be any reason why bloggers, when writing in a mode that becomes relevant, shouldn't be entitled to similar protections," he said. "In a lot of blogging, it simply wouldn't come up. You're writing in an opinionated context."
In Congress, a federal shield law introduced in May would cover bloggers involved in newsgathering.
"It's a fascinating issue," Caldwell said. "The one point I struggle with is who is a journalist. Who should decide who is a legitimate journalist and who isn't?"
Reach Derrick DePledge at firstname.lastname@example.org.