Cracks in the shield

January 29th, 2013
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The state House Judiciary Committee on Tuesday agreed to make permanent a state law protecting journalists and bloggers from disclosing confidential sources or other information, but expanded the exceptions to the law to include a broader range of serious crimes and civil actions.

Journalists and bloggers could have to disclose information if there is substantial evidence that it is material to the investigation, prosecution or defense of a felony, potential felony, serious crime involving unlawful injury to people or animals, or a civil action. The existing shield law, which expires in July, only includes exceptions for felonies or for civil actions involving defamation.

“I think the only way for reporters to do their jobs is to be able to keep their sources private for the most part. I also don’t want it to be an impediment to actual law enforcement,” said Rep. Karl Rhoads (D, Chinatown-Iwilei-Kalihi), the chairman of the House Judiciary Committee, which sent House Bill 622 to the full House. “And I suppose it’s a fine line.”

Jeff Portnoy, an attorney working with the Hawaii Shield Law Coalition, which represents news media interests, including the Star-Advertiser, said expanding the exceptions to include all civil actions is unacceptable. He said there was unanimity when the law was drafted in 2008 under the Lingle administration that the only exception for civil actions be for defamation cases.

“To try to carve out the civil case exception is totally unacceptable and really going back to a position that was rejected five years ago and should remain rejected,” Portnoy said.

Forty states and the District of Columbia have shield laws to protect journalists, according to the Reporters Committee for the Freedom of the Press, but many include exceptions that require the disclosure of information under certain circumstances. Hawaii’s law is considered a model by some because it extends the shield law protection to bloggers and other non-traditional journalists.

The state Attorney General’s office under the Abercrombie administration has argued that the protection for bloggers is far too broad and should be removed from the law. The administration also wants to add an exception stating that defendants in criminal cases have a constitutional right to information necessary for a fair trial. The administration would also remove the protection for all unpublished information.

State Sen. Clayton Hee (D, Heeia-Laie-Waialua), the chairman of the Senate Judiciary and Labor Committee, said the Senate would consider the attorney general’s arguments and the House amendments when senators hear the bill. He said senators have some concern about anonymous sources, as well as the definition of who qualifies as non-traditional journalists.

Some advocates for the news media believe it is important that the shield law cover bloggers and others who produce news and information on the Internet that is similar to the work of traditional journalists.

“I think what we’re trying to protect here is journalism, not journalists,” said Gerald Kato, a communications professor at the University of Hawaii-Manoa and a former Honolulu Advertiser reporter. “And journalism involves dissemination of information in the public interest, and that’s a lot broader scope than just journalists who work for a newspaper or a television station.”

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