One of the bills passed unanimously by the Legislature this year actually rectifies a 10-year-old mistake.
House Bill 1502 would restore important protections for journalists against government attempts to force them to disclose confidential information or reveal their sources. Those protections were contained in Act 210, the Hawaii Shield Law, which went into effect in 2008. The law was nationally recognized as a model for safeguarding one of the fundamental tenets of the First Amendment: freedom of the press.
Unfortunately, Act 210 was allowed to sunset in 2013 — effectively repealing it — after then-state Sen. Clayton Hee introduced some ill-advised amendments that would have gutted its protections. HB 1502 would reinstate Act 210 and make it permanent. Doing so would add Hawaii to the list of 48 other states and the District of Columbia that provide some form of shield for journalists working in the public interest.
Essentially, HB 1502 would limit “compelled disclosure of sources or unpublished information for journalists, newscasters, and persons participating in the collection or dissemination of news or information of substantial public interest,” with some exceptions.
The law would cover traditional media and digital news websites, and individuals whose positions are “materially similar or identical” to those working for established news outlets. In other words, random social media posters need not apply.
Such protections are vital. Without them, a state court could require a journalist to reveal a confidential source, or surrender any materials collected for a story, at the behest of a plaintiff or prosecutor. In effect, a journalist could be coerced into becoming an agent of the law — an obvious restraint on the independence of the press.
It also would have a chilling effect: For example, an investigative reporter probing possible government corruption could not guarantee a source confidentiality, or even gather information, without assuming it all could be exposed or confiscated by the very government she is investigating.
Of course, while the protections contained in HB 1502 are substantial, they are not absolute. There are commonsense exceptions to prevent abuse of the privilege or serious harm to life or public safety, among other things.
In its 2011 analysis of Act 210, the Hawaii Supreme Court Standing Committee on the Rules of Evidence recommended that the law be made permanent. It also suggested “that the Legislature might, were it so inclined, elect to take another look at” some of the committee’s proposed amendments, which in some instances would substantially weaken the law’s protections.
The Legislature has wisely decided it is not so inclined. HB 1502 is a strong affirmation of freedom of the press, and Gov. Josh Green should sign it into law.