Gov. Josh Green on Friday signed into law a measure that brings back and makes permanent protections to prevent reporters from being forced by state courts to disclose confidential information or sources.
Wyoming is now the only state that does not have a “shield law” to protect the work journalists do and the role they play in a functioning democracy.
Hawaii’s previous 2008 shield law was allowed to sunset in 2013.
“I think reporters deserve to have professional protections so they can do their job however they see fit, and I think they should have the latitude to be as honest and open about their work as they choose to be and never worry about any reprisals … ,” said Green in an interview after signing House Bill 1502, now Act 126.
“I’d like to see journalism survive for another 100 years, and this should help journalists continue to improve their craft. Nothing should stand in the way of an honest story, and least of all journalists shouldn’t be worried about looking over their shoulders.”
Act 126 protects traditional, nontraditional and online journalists by limiting “compelled disclosure of sources or unpublished information for journalists, newscasters, and persons participating in the collection or dissemination of news or information of substantial public interest,”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 Judiciary and Hawaiian Affairs added clarification that the law applies to “digital news sites,” and the Senate Committee on Judiciary added a provision that makes it clear the privilege attaches to journalists and not their sources.
HB 1502 was introduced by House Speaker Scott Saiki, with a companion bill in the Senate introduced by Sen. Les Ihara Jr.
Ihara (D, Palolo-Kaimuki- Moiliili) previously told the Honolulu Star- Advertiser that in January he happened upon a 2013 news story about how Hawaii lost its shield law. He said that then-state Sen. Clayton Hee was “hostile to the media” during the 2013 Legislature’s review of a bill, HB 622, that would have removed the sunset date on Hawaii’s shield law.
The 2013 news story reminded Ihara of partnering with Saiki, who at the time was House majority leader. Saiki (D, Ala Moana- Kakaako-Downtown) proposed a floor amendment as a last shot at correcting the conference draft of HB 622, 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.
The Shield Law Steering Committee, which led the negotiations on the 2008 bill that became Act 210, noted that when 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.
In addition to attorney Jeffrey Portnoy, who often represents media companies in First Amendment cases, the steering committee includes Gerald Kato, who helped craft the 2008 bill and worked 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.
Portnoy said it took only a couple of lawmakers who had beefs with the press to allow the original measure, once lauded as one of the most progressive in the country, to expire.
“I think it’s a real credit to the 2023 Legislature and the governor for putting back in place a shield law, considering there were only two states that didn’t have one until last week,” he said. “I think it’s an important day for the media; I think it’s an important day for democracy in Hawaii.”
Portnoy explained that journalists can now go to work and engage in investigations and look into the workings of government without fear of being pulled into litigation to reveal the sources of their reporting.
The other committee members are Stirling Morita, a retired newspaper journalist and president of the Society of Professional Journalists’ Hawaii Chapter, and Chris Conybeare, president of Media Council Hawaii.
Kato said in a previous interview that he never thought he’d see the return of the shield law in his lifetime. On Friday, he lauded the work of the advocates who fought for the bill when it seemed like few in the Legislature and the public cared.
Earlier efforts to enact protections failed largely over the issue of defining who or what qualified as a journalist for purposes of the law, Kato said in a statement.
In 1977, television reporter Matt Levi refused to disclose his source for reports about a grand jury investigation of then-Honolulu Mayor Frank Fasi. Levi was held in contempt by the courts but the case was resolved before a threatened jail sentence.
In 1984, Kato, then a journalist for The Honolulu Advertiser, refused to testify and was threatened with contempt in a case involving former state senator and city managing director D.G. Andy Anderson. The matter was resolved when Anderson agreed to plead guilty to a petty misdemeanor charge and sidestepped a trial.
After the Legislature passed Act 210 in 2008, and before the law expired in 2013, there was only one test case of the privilege, according to Kato. It involved a documentary filmmaker on Kauai who was subpoenaed in a civil case to turn over all outtakes for a film on a development project.
Based on the shield law, the Kauai court threw out the subpoena, he said. Essentially, the bill signed by Green Friday reinstates and codifies Act 210 with two amendments. It makes clear that the law applies to “digital news websites” and that the law attaches to the journalist and not the source, which is why it’s called a reporter’s privilege, Kato said.
HB 1502 acknowledges many of the recent changes in the way journalism is delivered without addressing specific technologies and platforms. The shield law will protect the work of anyone engaged in activities conveying information necessary in a democratic society.
“My concern is that a law is only as good as the willingness of journalists to use it in pursuit of truthful and accurate reporting,” Kato said. “There have been instances where local reporters have willingly complied with subpoenas to testify about and turn over information based on their reporting.”
