Gov. Josh Green is considering whether to sign a bill that would bring back and make permanent protections that would keep reporters from being forced to disclose confidential information or sources in state court.
Hawaii and Wyoming are the only two states that do not have any law on the books to protect the work journalists do and the role they play in a functioning democracy. The 2008 shield law that was allowed to sunset in 2013 would be
reinstated if the governor signs HB 1502.
The measure protects traditional, nontraditional and online journalists by limiting “compelled disclosure of sources or unpublished information for journalists, newscasters, and persons participating in the collection or dissemination of news or information or substantial public interest” while establishing exceptions, according to the Shield Law Steering Committee, which has been working since 2008 to get legislation permanently on the books.
The House Committee on the Judiciary and Hawaiian Affairs added clarification that the law applies to
“digital news sites,” and the Senate Committee on the
Judiciary added a provision that makes it clear that the privilege attaches to journalists and not their sources.
“There are hundreds of bills that are on the governor’s desk, but all bills must undergo a thorough legal and fiscal review in addition to the Governor’s assessment on whether the bill constitutes good public
policy,” Green’s director of communications, Makana McClellan, told the Honolulu Star-Advertiser in a statement. “As such, even if there are bills that it would seem he would agree with on its face, it must still be determined that there are no unintended fiscal implications and there are no legal or constitutional infirmities. Until that analysis is completed, which will be ongoing for the next several weeks, the office is unable
to officially comment on whether the Governor will or will not sign a bill.”
Green has until July 11 to sign the bill or deliver the veto. If Green decides to kill the bill, he must inform state lawmakers by June 26.
HB 1502 was introduced by House Speaker Scott Saiki, with a companion bill in the Senate introduced by Sen. Les Ihara Jr.
Ihara told the Star-
Advertiser that in January he happened upon a 2013 news story about how
Hawaii lost its shield law.
Then-state Sen. Clayton Hee was “hostile to the media” during the 2013 Legislature’s review of a bill, HB 622, that would remove the sunset date on Hawaii’s shield law, Ihara said.
The 2013 news story reminded Ihara of partnering with then-House Majority Leader Scott Saiki.
Saiki proposed a floor amendment as a last shot at correcting the conference draft, which was supported by a coalition of media advocates. But Hee was Judiciary chair and persuaded the majority caucus to pass the “flawed CD1,” Ihara said.
“As the 2023 bill introduction deadline approached, I inquired with Speaker Saiki if he was interested in the shield law. He was and told me to suggest a draft that
he could introduce with
support from journalists groups. I inquired with those who are now on the Hawaii Shield Law Committee
about their interest. It was unanimous, but with some concerns about being mistreated by legislators on this issue in the past,” said Ihara.
“I am hopeful that HB1502 will be enacted and used by the Media Council and other journalist groups to engage the public on the role of media in American democracy.”
Jeffrey S. Portnoy, a First Amendment attorney and member of the Shield Law Steering Committee who led the negotiations on the 2008 bill, told the Honolulu Star-
Advertiser in an interview that when it first passed
15 years ago, it was considered by national pundits to be one of the most “progressive and media-friendly and reporter-friendly” shield laws in the country.
“And then, what has become all too typical of legislative shenanigans at the last minute, a sunset
provision was inserted. And again, based upon politics and certain legislators, the statute was allowed to sunset,” said Portnoy. “It is a tribute, frankly, to this Legislature that after all these years it has agreed to reinstate the shield law and begin to provide statutory protections to journalists to protect their ability to report on important events without having to, in most cases, either become
advocates for one side or another, or to reveal confidential sources. In an era in which Hawaii is continuing to face significant allegations of corruption, this shield law will provide
protections to journalists and their sources to … report and comment on significant public matters.”
In addition to Portnoy, the Shield Law Steering Committee includes Gerald Kato, who helped build the 2008 bill and worked for
18 years as a television and print journalist. Kato also taught journalism and
communications for
32 years at the University of Hawaii before retiring in December.
The other members are Stirling Morita, president of the Society of Professional Journalists, Hawaii Chapter; and Chris Conybeare,
president of Media Council Hawaii.
Kato told the Star-
Advertiser in an interview that he never thought he’d see the shield law come back in his lifetime.
While journalism has changed a lot since 2008, the need to protect journalists, journalism and their sources has not, Kato said, and there still need to be permanent statutory
protections.
HB 1502 addresses many of these changes to the delivery of journalism without addressing specific technology. The shield law would protect the work of anyone engaged in activities conveying information necessary in a democratic society.
“At its heart it’s the government accountability bill. By protecting journalists and their sources, we encourage people to disclose information about public and private malfeasance,” said Kato. “It’s important in these times to have some incentive to have people come forward with information and for journalists to disclose that information without fear that they are going to be pulled into a civil or criminal proceeding as a
result.”
