Hawaii Media Shield Law Debated
News Release from Sen Laura Thielen
This week I’m sharing interesting testimonies we’re receiving on key bills as we get down to the wire.
Recently all Senators received a couple communications on HB 622: Relating to Evidence, more commonly referred to as “The Shield Law.”
The first testimony is from attorney Jeff Portnoy, who represents many media organizations in town. His letter purports to respond to comments made by Senator Clayton Hee. I do not have the original comments Mr. Portnoy is referring to, but I think it may be comments the Senator made on the floor when we were voting on the Third Reading of the bill, but cannot vouch for that.
Yesterday Senator Hee entered his response to Mr. Portnoy on the record of the Senate Journal. Clearly there is some personal animosity between the two, which is not relevant to the substance of the bill. Setting that aside, the question of whether the Legislature should pass the House or Senate version of the Shield Law – or neither – is an important one.
Before getting to the testimonies: some background on the bill for those who are new to it. Several years ago the Legislature passed Act 210 that provided the media with a limited privilege against the compelled disclosure of their sources.
Protection of news sources is linked to the importance of the press in a democracy. The press is a check and balance on our government and other powerful institutions. But the press may have a hard time finding sources if people know reporters can be easily compelled to reveal their names.
On the other hand, freedom of the press needs to be curtailed somewhat too. Press should not be free to defame people, or cover for a criminal, and there is some boundary line for privacy.
Act 210 was an attempt to find that balance between freedom of the press and other public interests. However, the Act “sunset,” or expires, this year. A sunset is a tool that requires the Legislature to come back and re-evaluate whether to make the law permanent, after we’ve had some time to see it in action.
The original HB 622 simply proposed to make Act 210 permanent. HB 622 was amended once by the House Judiciary, and then once again by the Senate Judiciary.
I am not on the Judiciary Committee, and am unfamiliar with the details of the various forms of the bills or the nuances of the nation’s various shield laws. However, according to some of the testimonies I’ve reviewed, it appears the ranking of the bill, from strongest and broadest protection for press, is as follows:
- HB 622
- HB 622 HD1
- HB 622 HD1, SD1
After reviewing the final bill and testimony, I voted against the Senate version of the bill. It appeared to define journalists – those who are entitled to the privilege – based on the organization they work for: a publication that earns revenue from subscriptions. That’s outdated in today’s world.
According to some testimony we received, journalists working for the Huffington Post, receiving over a million individual hits per day, would not necessarily qualify for the protections under this bill.
I requested permission to reprint the email from Jeff Portnoy. Regardless if you agree with him, I found this to be another good example of substantive testimony that helps inform the tough issues we are wrestling with at the end of session (except for the personal stuff).
Senator Hee entered his email response in the Senate Journal, and as such, it’s a public record. He also made verbal remarks on the floor, but those have not yet been documented. He raises valid points about other jurisdictions.
FYI, the Senate assignment for HB 622 Conference Committee was recently amended. Sen. Ihara, who voted to support SD1 with reservations, was added to the Committee. It appeared from his floor remarks yesterday, the Chair was not pleased. He noted that it was out of the ordinary to have the entire Senate Judiciary Committee assigned to Conference Committee for a bill.
You can link to other testimonies on HB 622 from the various hearings here:
http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=HB&billnumber=622
And the Shield Coalition, a group supporting making Act 210 permanent, has set up a Facebook page, which you can find here:
https://www.facebook.com/groups/hawaiishieldlawcoalition
JEFF PORTNOY’S TESTIMOMNY IN FAVOR OF THE SHIELD LAW
April 16, 2013
Hawaii Senate
State Capitol
415 S. Beretania St.
Honolulu, HI 96813
Dear President Kim and Members of the Senate:
I am currently teaching law in Poland so I regret that I was unable to deliver this message to you as promptly as I would like. But I want you to know my response to recent comments made by Sen. Clayton Hee regarding my representation of the Hawaii Shield Law Coalition.
For more than 40 years in Hawaii, I have been a lawyer in private practice, a former president of the Hawaii Bar Association, and an active participant in community affairs. I believe I have a well-earned reputation for honesty and integrity. So I was distressed to learn that my name was invoked in Sen. Hee’s efforts to defend his actions on the shield law bill (HB622). I do not intend to get into a pointless debate with the senator. But I want the record to be clear:
> The Judiciary’s Evidence Committee report is a matter of public record available for all to read. In its report to the Legislature, the committee says in clear language: “The committee recommends that the sunset provision be eliminated and that Act 210 be integrated into HRS ch. 621.” Deputy Attorney General Diedre Marie-Iha, who sits on the committee, represented a minority position, and, to my knowledge, she is the only person to vote against the report.
> The Evidence Committee, in non-binding language, added that the Legislature, “were it so inclined,” may want to take a look at sections of the law involving unpublished information and defamation and fines and imprisonment. There is nothing in the suggestions of the committee about redefining journalists, which is part of the senate amendments to HB622.
> As to any assistance Sen. Hee may have had from the American Civil Liberties Union, I will let the ACLU speak for itself.
I have taught media law for many years, so I am intimately familiar with the 1972 case of Branzburg v. Hayes, in which the U.S. Supreme Court held that a reporter cannot claim a First Amendment privilege to avoid disclosing confidential sources in response to a grand jury. Sen. Hee has cited that case on a number of occasions to suggest, it seems, that there should not be any legal privilege for news reporters. The case is not that simple.
The Branzburg court was split 5-4 against finding a First Amendment privilege, and Justice Lewis Powell’s concurring opinion acknowledges the “limited nature” of the decision stating that rulings should be made on a case-by-case basis. And even the majority in Branzburg acknowledges, “without some protection for seeking out the news, freedom of the press could be eviscerated.” The court left the states free to adopt statutory privileges for news reporters. Branzburg is the reason why many states have adopted and strengthened their shield laws to protect newsgathering and reporting, and it is the reason we believe we need a law in Hawaii.
Many of you may recall that five years ago, working with the Legislature, the then Attorney General, and with the assistance of former Rep. Blake Oshiro, we compromised on language and the bill passed both chambers unanimously and was signed into law as Act 210. Sen. Hee was a member of the senate at the time, and as far as I know, voted for the law.
I agree with Sen. Hee that “the press is not free to publish with impunity everything and anything it desires to publish” and that the press “may not circulate knowing and reckless falsehood.” That is why the existing shield law specifically excludes defamation–false information–from protection. Our goal in making the shield law permanent is to protect the free flow of truthful information that the public needs to make informed decisions.
Thirty-nine states and the District of Columbia have shield laws, and Hawaii’s law is ranked among the best and a model of progressive legislation. Hawaii has a long tradition as a progressive state, not a regressive state. Rolling back this law will be viewed nationwide as a repudiation of that progressive tradition. I ask you to protect the law that we have by simply repealing the “sunset” provision and making it a permanent part of state statutes, thereby reaffirming Hawaii’s commitment to the free flow of information and freedom of the press.
Thank you for your consideration.
Sincerely,
/s/ Jeffrey S. Portnoy, Esq.
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SEN. HEE’S RESPONSE
Dear Mr. Portnoy:
The only reason I brought up your name was because you misrepresented the truth to the Senate Committee on Judiciary and Labor when you said that the Judiciary Committee on Rules of Evidence UNANIMOUSLY agreed to extend the shield law. Your testimony was contradicted a few minutes later by Deputy Attorney General Deidre Marie-Iha, who said you were untruthful in that statement. When Deputy Attorney General Iha was asked by Senator Slom how she would know this information, the Deputy Attorney General said, “Because I was a member of that committee and I voted ‘no’”. I would note here that you were present and never challenged her statement.
The truth is that 32 states have statutorily enacted a shield law, none of which are as overly broad as the Hawaii law. The rest of the states have an iteration of a shield law established by common law. Finally, I note that the US Congress has not statutorily constructed any law providing a shield to “journalists”.
I also note that both you and Mr. Stirling Morita, the President of the Society of Professional Journalists, have said that there are “many” examples where the shield law has worked in Hawaii. It has been more than two weeks since the public hearing and neither you nor any other journalist has produced a single example supporting that statement. To date there has been only one case in five years where the law was used.
I respectfully encourage you to get your facts straight before misrepresenting the truth to the Senate Committee on Judiciary and Labor.
Yours truly,
Clayton Hee
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Update on Media Shield Law Testimonies
I’ve copied below subsequent testimony we received from attorney Jeff Portnoy, responding to Sen. Hee’s statement.
I copied the original Portnoy testimony and Sen. Hee statement regarding the Medial Shield Bill in a post earlier today. You can access that post here.
April 18, 2013
Hawaii Senate
State Capitol
415 S. Beretania St.
Honolulu, HI 96813
Dear President Kim and Members of the Senate:
As I said in my earlier letter to you, I do not wish to engage in a pointless debate with Sen. Clayton Hee on the merits of HB622 Regarding Evidence. However, Sen. Hee’s insistence on distorting the record requires a response.
The Judiciary Evidence Committee’s Report of December 2011 states that it recommends that “the sunset provision be eliminated and that Act 210 be integrated into H.R.S. Ch. 621.” The committee says the Legislature might, “were it so inclined,” look at sections of the law. Nowhere is there any indication of a minority report or dissenting vote on the committee. Committee discussions were confidential so if Deputy Attorney General Diedre Marie-Iha wishes to cast a public dissent, that is her right. However, in testimony submitted to the House Judiciary Committee on February 2, 2012, on a matter related to the shield law, Judge Glenn Kim, chair of the Evidence Committee, said this:
“The Judiciary supports making the news media privilege permanent by repealing the scheduled sunset date of Act 210, Session Laws of Hawaii 2008, as amended by Act 113, Session Laws of Hawaii, as proposed in House Bill No. 2763, which is currently pending hearing by this committee.” (Underscore added)
Nothing Judge Kim said at that time would suggest that the committee was anything but supportive of the shield law.
I should note that during the senate judiciary committee hearing on HB622 on March 28, 2013, Deputy Attorney General Marie-Iha submitted her testimony late so it was not available to the committee or the public until moments before she testified. I did not have an opportunity to read it, much less comment at length about what she had to say.
Sen. Hee contends that at that hearing the news media were unable to provide examples of how the shield law has been used over the past five years. He bases this statement on the testimony of one testifier, whom Sen. Hee badgered during questioning. Sen. Hee gave no one else an opportunity to respond to his question. If he is interested, I can cite examples where the shield law has been used to ward off problems. There are the Ka Loko Dam breach case on Kauai and the Big Island voter fraud case. The shield law was invoked in these cases to head off major problems involving confidential sources used in newsgathering. And having the law deters others from trying to force disclosure because they know the law prevents going on fishing expeditions for news sources and unpublished information.
If Sen. Hee is interested in more information on this matter, I would be happy to provide it in depth and detail when I return. I offer these comments now in the interest of a clear record for you to make rational decisions involving important matters of a free press in Hawaii.
Sincerely,
/s/ Jeffrey S. Portnoy, Esq.