Hawaii shield law will expire after lawmakers unable to reconcile competing bills

Jack Komperda | Reporter's Privilege | News | May 3, 2013

Just five years after passing its groundbreaking media shield law, Hawaii lawmakers have effectively killed any hopes of adopting a permanent version of the law, which is set to expire next month.

Lawmakers in the House and Senate passed differing versions of the law this week that would protect journalists from disclosing confidential sources and notes. With the Legislature set to adjourn this week, the disagreement between the House and Senate ensures the current shield law will expire on June 30.

Jeffrey Portnoy, a First Amendment lawyer representing a coalition of media groups that lobbied the state Legislature to pass a permanent version of the current law, said he was disappointed with the outcome.

“I think it’s terribly sad,” Portnoy said. “We have had a model law that was proven in practice to be effective and appropriate. To have the Senate try to change it so dramatically by eliminating virtually all 21st century journalists (from its protections) is a tragedy.”

House Bill 622 was originally drafted to remove the current shield law's June 30 expiration date. But lawmakers in both the state House and Senate passed amended versions of the bill limiting who can take advantage of the protection.

Both versions of the bill limited the circumstances in which reporters can take advantage of the privilege that would keep them from being forced to reveal their confidential sources or reveal their notes.

The Senate version of the reporter shield bill, in particular, removed any such protections from bloggers, requires authors to work for traditional media outlets such as newspapers, magazines and wire services, and eliminated any protection for unpublished material.

Last week, a House and Senate committee charged with ironing out discrepancies between the two versions passed a compromise draft bill that removed protections for non-charging newspapers, expanded the circumstances under which law enforcement authorities can subpoena journalists’ notes and excluded protections for bloggers.

But rather than go along with the new version of the bill, the House on Tuesday amended the bill to extend the shield law for two more years. The Senate then followed suit by passing its own version of the bill without recognizing the House amendment.

Hawaii Senate Majority Leader Brickwood Galuteria then released a statement blaming the state House for the shield law bill’s failure to become law.

“Passing the amendment without consulting with the other chamber affirmatively kills the bill,” Galuteria said. “The floor amendment presented a very substantive change to the conference draft that was agreed upon by the House and Senate conferees. Every draft of the bill up until that point sought to make the shield law permanent. To introduce such a substantive change, moments before the Senate began its floor session, lacked the transparency and openness that the public expects and deserves.”

Members of the media coalition pushing for a permanent version of the shield law considered the conference draft passed last week to be worse than having no version at all, said Gerald Kato, a University of Hawaii journalism professor involved in the lobbying efforts.

“In the end, what the Senate did was narrow the application of the law,” Kato said. “They redid the law to make it so narrow and so limited in its protections that in the end it was worthless.”

The Reporters Committee for Freedom of the Press sent a letter last month to lawmakers urging the state legislature to pass the original version of the bill which simply removes the sunset provision from the current state shield law.

Since its first enactment in 2008, the shield law’s protections were exercised just once in 2009 when Kauai Circuit Court Judge Kathleen Watanabe granted a documentary filmmaker’s request to keep his unpublished footage and sources confidential.

Portnoy said a shield law would not likely to pass in the next legislative session until there is a change in the makeup of the current political leadership. Until that happens, the media coalition may urge the state judiciary to either pass an evidentiary rule similar to the state shield law or simply allow privilege issues to be decided by the courts on a case-by-case basis.

“We are definitely going to let time go by,” Portnoy said. “We don’t see any reason to go back to this Legislature.”