Senate Judiciary Chair, Journalists, Battle Over Future of Journalism Shield Law

By Malia Zimmerman | Hawaii Reporter

HONOLULU – Hawaii’s law is considered by media advocacy groups and working journalists as one of the best in the country. However the battle between Senate Judiciary Chair Clayton Hee and local journalists to keep the Journalism Shield Law in place did not end well for journalists at a Wednesday committee hearing.

Journalists from 22 media organizations who teamed up to form the Hawaii Journalism Shield Bill Coalition, the University of Hawaii journalism department and other advocates of the current law including the Society of Professional Journalists national and local chapters, hoped the legislature would merely eliminate the June 30 sunset provision.

Instead, the Senate committee chair made changes to a House version of the bill, and in doing so, removed any protection for online journalists or non-traditional journalists. The new version of the bill was not shown to Senate committee members before they voted or to journalists who will be impacted by changes.

“This is an outrage. … It’s rubbish,” said First Amendment Attorney Jeff Portnoy who worked diligently in partnership with the attorney general, the judiciary, the media and the ACLU five years ago to pass the existing law, Act 210.

University of Hawaii Journalism Professor Gerald Kato said Hee’s substantial changes to the state’s shield law “pose a threat to journalists and journalism in Hawaii.”

“It provides a ‘privilege’ only in the most narrow of circumstances involving confidential sources, and even then, the proposal is replete with means of piercing any privilege,” said Kato, who was especially concerned that online journalists were eliminated and Hee defined journalists only as “Journalist or Newscaster”; “Magazine”; “News Agency”; “Newspaper”; “Press Association”; and “Wire Service.”

“If you do not fall within the definitions of these categories, then you’re not entitled to any protection,” Kato said.

In addition, the current law gives broad protection to previously employed journalists, but Kato notes that Hee’s proposed changes protected journalists only during the period of their employment.

Hee’s decision to eliminate existing protections for “unpublished information” is a “big deal”, Kato said, “because it will subject all journalists to subpoenas for outtakes, notes, materials that have been collected in the course of reporting stories.”

Sen. Les Ihara, who introduced the bill, and Sen. Sam Slom who sponsored a bill 5 years ago that led to the current law, asked Hee as they had previously to keep the existing law in place without changes.

“I support Sen. Ihara’s call to go back to the original bill,” Slom told the chair, adding the bill was passed so journalists could report controversial and corruption stories, particularly about government in Hawaii.

But Hee said the bill will in fact protect what he called “bona fide journalists.”

“We put a lot of work into this and as I said earlier our intent was to put something together where the judge would be able to – to the best of our ability at this time – be able to determine whether the individual or company indeed met the standards required,” Hee said.

Hee, who is the Judiciary chair but not an attorney, also cited a U.S. Supreme court, Branzburg v Hayes, in justifying his changes.

“The preamble to this is absurd. To cite Branzburg v Hayes … that is why state’s passed shield laws, because there is no constitutional protection. That is the whole reason. And for the Senate chair not to understand that basis and to cite Branzburg shows the absurdity of the entire proceeding,” Portnoy said.

Hee said he worked with the state attorney general, Judiciary Evidence Committee and the ACLU to get the current draft and refused to amend it.

“If the attorney general is involved, he ought to be ashamed. If the ACLU is involved in these changes, it ought to be ashamed. And to say the Judiciary is in favor is an outright misstatement,” Portnoy said. “The Judiciary said the bill should be passed as previously passed with the deletion of the sunset provision and no other recommendations.”

An ACLU representative said after the hearing that the ACLU had not seen the final draft and did not know what was in the bill.

“Hee disingenuously invoked the Judiciary Evidence Committee and the ACLU as supporting these changes. Not true,” Kato said.

Hee, who wore his signature dark tinted sunglasses throughout the hearing and went from irritated to irate when challenged by fellow senators on his proposal, slammed the media saying journalists make mistakes and are not always truthful or accurate.

Hee used as an example the notorious Chicago Tribune headline from 1948 “Dewey Defeats Truman” that referred to a story that erroneously reported Thomas E. Dewey won the presidency Harry S. Truman and another story that appeared on KITV News in 2007 that said Big Island Rancher Larry Mehau had died, when in fact his death was prematurely reported.

“This bill is worthless and it is a travesty that after 5 years, the chair of this committee would come up with a bill with an explanation that is totally wrong legally and factually. And to present Dewey vs Truman as an exhibit on journalism is … is … I don’t even know what to say, really,” Portnoy said.

Journalists were told a fourth member of the 5-member committee, Sen. Mike Gabbard, would support their version of the bill, but he kept silent. His decision was key because Gabbard would have been the third member of the 5-member committee to ask Hee to go back to the original version.

In the end, the Senate committee members voted on a bill they had not been permitted to read or review before voting. Ihara and Slom voted with reservations for the bill, in hopes it would move into conference committee and get amended there.

“To watch the process is outrageous. … Members on the committee voted on this blind. They never even saw it. … After all of the work we put in to watch this happen the way it did is an embarrassment to the state of Hawaii and this legislature.”

Forty-nine states and D.C. recognize some form of reporters’ privilege.

The Student Press Law Center has described Hawaii’s law as “the best in the country in terms of the clarity and breadth of its coverage.” It has been cited as a model for a national shield law.

The existing law does not impact journalists subpoenaed in criminal cases or protect journalists sued for defamation.

Hawaii Reporter is a direct beneficiary of the media shield law, which passed in 2008, and has used it to block subpoenas of notes, sources and other unpublished materials in relation to the breach of the Ka Loko dam.

In the civil case, the defendant tried to obtain information related to a March 2007, 21-minute investigative television report Hawaii Reporter produced in partnership with ABC 20/20 on the March 14, 2006 dam breach. That subpoena was not acted on after Hawaii’s law passed protecting journalists in civil cases.

Because of the shield law, human trafficking victims from Asia, sex trafficking victims from Hawaii, and those with knowledge of illegal gambling operations and other crimes have been more willing to come forward, telling Hawaii Reporter their lives would be in jeopardy if their identities were revealed.

Keoni Kealoha Alvarez, a Native Hawaiian filmmaker was the first non-traditional journalist to use Hawaii’s 2008 journalism shield law to protect his work in 2009.

Hee said “…there has only been one case, so I am not sure anyone could make a compelling argument on clarifying and defining the elements of the so called journalist.”

Portnoy said he has cited the journalism shield law dozens of times to protect his journalist clients from having to turn over notes, sources and unpublished materials.

Portnoy said if the bill passes as Hee has drafted it, and does not get changed for the better in conference committee, he will ask the governor to veto it, adding journalists are better off without a law than the proposed legislation Hee designed.

“This is a complete gutting. Our only hope is that at the conference committee some sort of rationality prevails, facts prevail, the law prevails and that the senate version is completely rejected,” Portnoy said.

Stirling Morita, the chapter president of the Society of Professional Journalists, said for the most part, Hee’s amendments “are based on objections from the Attorney General’s Office – which have no basis in reality.”

“It is sad to see the committee’s emasculation of a law that has proven its worth. Hopefully, the conference committee will do its job and pass a version of the bill that mirrors the current Shield Law,” Morita said.

Kato, who met with Hee about the bill along with the ACLU, said: “Sen. Hee’s actions are outrageous, as Jeff Portnoy said after the hearing. There is no basis in law or logic for his proposals, which are nothing less than a full frontal assault of any kind of journalism in this town. It is petty, but threatens to take one of the best shield laws in the country and turn it into the worst.”

Reach Malia Zimmerman at Malia@Hawaiireporter.com or follow Hawaii Reporter on Facebook

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