Shield law good for public, journalists
By Jeff Portnoy and Gerald Kato
On July 2, Hawai'i became the 36th state to enact a law to protect journalists and their sources.
Gov. Linda Lingle signed what's known as the shield law (Act 210), which was unanimously passed by the Legislature last session. It is a significant step forward for a free press and the free flow of information in Hawai'i.
For a long time, Hawai'i journalists have faced the threat of being forced to reveal confidential sources of information. There was no privilege under state law, nothing in the Judiciary's Rules of Evidence, and the only case decided by the state Supreme Court nearly 50 years ago said there is no constitutional right to conceal the identity of sources.
The new law is one of the best in the country. It protects traditional journalists employed by newspapers, magazines, and radio and television stations. In addition, the law recognizes the changing media environment by extending protection to non-traditional journalists such as bloggers if they work in the public interest and they hold a position similar to traditional journalists.
It protects journalists from being forced to disclose confidential sources of information that could lead to a source's identity. While using confidential sources isn't always the most desirable way to report a story, as a practical matter it may be the only way to obtain important information in the public interest from sources, especially in investigative reports.
In addition, the new law protects any non-confidential newsgathering materials that have not been published or broadcast, such as outtakes, photographs and notes. This is significant because unpublished materials have frequently been a point of contention between the local news media and lawyers who have been issuing subpoenas routinely seeking such materials.
In the end, the law protects your right to know information about what's going on in government and the community in which you live.
As with most shield laws, there are exceptions to the protections given journalists. The shield law privilege is qualified in felony cases where there is "substantial evidence" the information is material to the investigation. In such cases, the privilege would be subject to a three-part test: 1. if the information sought is otherwise unavailable through other sources; 2. the information has not already been obtained from some other person or document; and 3. the information is necessary and relevant to the charge, claim or defense asserted. If not insurmountable, this is a major barrier to those seeking to force disclosure by journalists. On the other hand, there's an absolute protection in anything less than a felony and all civil cases, except defamation. Defamation cases would be subject to the same three-part test as felony cases.
The privilege doesn't apply if the person claiming the privilege has committed, is committing or planning to commit a crime. Neither would the privilege apply if the person claiming the privilege observes the alleged commission of a crime so long as the crime in question was not the disclosure of the information. And, the privilege is lost when the information is "important to help prevent imminent harm to life or public safety." In all such cases there will be a review by the courts.
For some, a major stumbling block in the bill is that it includes an amorphous class of non-traditional journalists. Traditional journalists in the mainstream news media fear this gives protection to irresponsible bloggers unrestrained by ethical standards. Bloggers, on the other hand, say they should not be subjected to different requirement from traditional journalists for protection.
Clearly, owning a laptop computer doesn't make you a journalist; but there are those such as documentary filmmakers, book authors and bloggers who do work that would be considered journalism by any definition. This bill takes a practical approach by protecting those whose intent is to gather news and information in the public interest without regard to how they disseminate that news and information. That should be what the free flow of information is all about.
As we said at the outset, we think this is one of the best shield laws in the country and protects the interest of every journalist in Hawai'i whether they've been subject to a subpoena or not. But don't get too comfortable. Lawmakers — for reasons of their own — put a sunset provision in the bill that says it will expire in three years. Obviously, we believe that this is a good and durable law on which the sun should never set.
Jeffrey S. Portnoy is a partner with the Cades Schutte law firm. He also represents The Advertiser on First Amendment issues. Gerald Kato teaches journalism at the University of Hawai'i School of Communications. They wrote this commentary for The Advertiser.