By Derrick DePledge
The state Attorney General’s office on Thursday urged state senators to remove bloggers from a law that protects journalists from revealing confidential sources, arguing that the provision is too broad and untested.
Deputy Attorney General Deirdre Marie-Iha said no other state has gone as far as Hawaii’s media shield law in protecting nontraditional journalists. She asked senators whether the law was intended to cover, for example, someone who had never participated in journalism but uses Facebook to comment on a public scandal and is provided information from confidential sources to post.
“Removing this provision would make it so it was better tied to, we think, people who are truly akin to a professional journalist,” Marie-Iha told the Senate Judiciary and Labor Committee.
The Attorney General’s office also wants to delete a provision in the shield law that protects all unpublished information collected by journalists from disclosure. Marie-Iha said the law should only protect unpublished information that could lead to the identity of confidential sources.
In addition, the state wants to make clear that criminal defendants have a constitutional right to compel information necessary for a fair trial.
News media interests were already alarmed by changes approved by the House that would expand exceptions to the shield law. The House, however, did not adopt the recommendations by the Attorney General which, some in the news media fear, would further gut the law if embraced by the Senate.
Under the law, which was passed in 2008 and expires in July, there are exceptions for felonies and civil actions involving defamation. The House added exceptions that would require disclosure if there is substantial evidence that the information 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.
Jeff Portnoy, an attorney representing the Hawaii Shield Law Coalition, which includes the Star-Advertiser, asked senators to reject the House changes and the recommendations by the Attorney General and simply make the law permanent.
“I urge you, based upon five years of history, not to tamper with a bill that has worked perfectly in our jurisdiction and is recognized as one of the best in the country,” he said.
Hawaii’s shield law is considered a model mostly because of the protection for nontraditional journalists such as bloggers who operate independent web sites. Forty states and the District of Columbia have shield laws that offer varying degrees of protection for journalists against the compelled disclosure of confidential sources or other information in court.
“This is probably one of the most forward-thinking laws in the nation,” Stirling Morita, the president of the Society of Professional Journalists Hawaii chapter and a night city editor at the Star-Advertiser, said of the protection for bloggers.
Morita also said it is important to preserve the protection for unpublished information to prevent government interference with the editorial process.
But news media interests struggled to provide senators with examples that the shield law has led to news reporting that otherwise would have remained hidden. Keoni Alvarez, a filmmaker who is preparing a documentary on Hawaiian burials, invoked the law to avoid disclosing video of a Kauai protest in a civil case.
Sen. Clayton Hee (D, Heeia-Laie-Waialua), the chairman of the Senate Judiciary and Labor Committee, said he would likely move the shield law -- House Bill 622 -- out of his committee on Tuesday with amendments.
Hee said afterward that he was disappointed by the lack of examples of the shield law’s effectiveness. He also said he would weigh the Attorney General’s concerns about the distinction between professional journalists and bloggers.
“It made sense to me to give serious consideration to clarifying, putting on definitions, that it removes -- to the extent possible -- doubt that might otherwise arise in a courtroom,” Hee said.