News Release from Hawaii Shield Law Coalition March 5, 2015

The House Judiciary Committee Wednesday issued its amended HB 295 Relating to Evidence, better known as the “shield law.” HB295, introduced by Rep. Greg Takayama, would have fully restored Act 212 of the 2008 Legislature, the shield law, which was repealed two years ago in the face of then Senate Judiciary Chair Clayton Hee’s efforts to gut the law. House Judiciary Chair Karl Rhoads took up HB295 on February 20, 2015.

Rhoads seems to have picked up where Hee left off. The changes he is proposing in HB295HD1 is a disaster. What Rhoads is proposing, together with the Attorney General’s Office, is a setback for hard won court cases by the news media over the past 30 years.

Let me give you one alarming example. Rhoads wants to eliminate broad protections for “unpublished information” even if no source is involved. Rhoads adopts the Attorney General’s position that if there’s no source involved, such information should be subject to disclosure. Such reasoning ignores the reality of journalism. Put simply, a subpoena seeking unpublished material obtained during newsgathering intrudes on the editorial process. Litigants will find it easier and cheaper to force journalists to hand over information, whether it involves a source or not, rather than conduct their own investigation.

Courts have long recognized the need for broad protections to “unpublished information” from non-confidential sources:

“We discern a lurking and subtle threat to journalists and their employers if disclosure or outtakes, notes, and other unused information, even if non confidential, becomes routine and casually, if not cavalierly, compelled.” United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st. Cir. 1988)

In Shoen v. Shoen I, the U.S. Ninth Circuit Court of Appeals discussed whether the journalist’s privilege applies in the absence of confidentiality, and explained news media interests in avoiding compliance with requests for unpublished but non confidential information:

“[the] threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; and the burden on journalist’ time and resources in responding to subpoenas.”

Locally, a state judge in 1994 ruled that the Honolulu Advertiser does not have to give unpublished photographs to a coconut-tree accident victim who planned to file a lawsuit against the city of Honolulu. The judge found that the victim failed to demonstrate that the photographs were necessary or critical to her claim, or that the information was unavailable from other sources.

This was a case won by First Amendment Attorney Jeff Portnoy, who eloquently defended the need to maintain the broad protections in the original shield law for unpublished confidential and non-confidential information. Portnoy’s arguments seem to fall on deaf ears in the face of Rhoads’ and Deputy Attorney General Diedre Marie-Iha’s insistence that such broad protections were unnecessary.

The fact is that, as Portnoy aptly puts it, protection of unpublished information confidential or not is the “lifeblood” of journalists.

There are other reasons to object to Rhoads’ amendments, but this alone is cause for fear. Make no mistake that what Rhoads wants to do is fraught with danger.

Rhoads’ amendments rob substantive meaning from the shield law we worked long and hard to enact in 2008. On the pretext of protecting press rights, Rhoads and the Attorney General’s Office are attempting to water down protections and threaten hard-won freedoms. Rhoads’ amendments must be defeated or the bill itself should be killed. No law is better than a law that takes away press rights in the guise of protecting the press.

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