In Hawaii, "shield" typically describes a type of volcano with large shallow sloping sides
that resemble a Hawaiian warrior's shield.
Now the word stands to gain additional meaning, as the 50th state has become the 36th with a shield law for journalists.
And Hawai`i is the 1st state to endorse a measure specifically extending protections to nontraditional news disseminators like bloggers.
"The Media Council believes that enacting a shield law is the best means of assuring the continued free flow of information
that is vital to the public interest," the Honolulu Community Media Council said in support of the measure.
Many feel a shield law couldn't come soon enough. Hawai`i journalists have long faced a worst-case scenario for protecting
confidential sources: No statutory protection exists, and the only relevant case to reach the Hawai`i Supreme Court
(in Re Goodfader's Appeal in 1961) held that a newsperson has no constitutional right to conceal a source's identity.
While no Hawai`i reporter has gone to jail for refusing to name a source, the uncertain legal terrain kept open the possibility,
and subpoenas seeking information have been issued.
The impetus to provide some certainty came after high-profile national stories emerged about journalists being jailed or
facing threats of jail because they declined to identify sources, such as in the Valerie Plame case.
History
State Rep. Blake Oshiro, a Democrat, and state Rep. Gene Ward, a Republican, initiated discussions in late 2007 on a
shield-law bill with news-media representatives, including the Honolulu-Community Media Council.
The Media Council sponsored a panel discussion on journalist-source privilege in November 2007, highlighting the
importance of the issue.
Rep. Oshiro, vice chair of the House Judiciary Committee, introduced a shield bill (HB 2557) as part of a 2008 legislative
package backed by Democrats, who hold a significant majority in the state House and Senate. The proposal, which also provided
protections for unpublished information, became the vehicle for discussion on a number of critical issues: 1) the scope of the
privilege in criminal and civil cases, 2) specific exceptions, if any, and 3) whether nontraditional journalists would be included.
The state Attorney General's office and Honolulu Prosecutor's office stated their objections at a February 2008 committee hearing,
arguing the bill was too broad and did not adequately address law-enforcement concerns about serious crimes and public safety.
Supporters backed the bill's intent but were wary about a provision that extended the privilege to anyone who met "applicable
standards of journalism ethics." That language was a red flag to the Society of Professional Journalists, which said its ethics
code is voluntary and not intended to acquire the force of law.
Oshiro recognized the problem and removed the ethics provision, and included some exceptions, such as the inapplicability of
privilege if a source consents to disclosure. Intent on extending protections to citizen journalists and bloggers, he replaced
the ethics standard with a provision giving coverage to any individual who disseminates information "of substantial public
interest . . . by means of any tangible or electronic medium."
The committee passed the measure on March 4, 2008 and sent it to the Senate. By that time, a coalition of Hawai`i news organizations
had solidified and was prepared to join the battle fully. A task force that included Media Council President Chris Conybeare,
Media Attorney Jeff Portnoy, UH Journalism Professor Gerald Kato and Honolulu Advertiser Editor Mark Platt was formed.
It became apparent that serious differences remained during a Senate Judiciary Committee hearing March 20, 2008 where law-enforcement
officials, including the Honolulu Police Department, were either opposed to the bill or demanded changes that effectively made the
privilege useless.
The coalition, meanwhile, supported a broad privilege for traditional and nontraditional reporters. An interesting departure came
from the Big Island Press Club, composed of journalists on the island of Hawai`i, which said a shield law was not needed since the
First Amendment already provided adequate protections.
Senators urged the various sides to work out a compromise, and a week later the coalition met with Attorney General Mark Bennett
and representatives of city Prosecutor Peter Carlisle. Bennett drafted a new bill which included law-enforcement provisions the
news media found unacceptable, prompting the coalition to submit its own draft. The Senate committee eventually passed the coalition's
version, with the understanding negotiations would continue.
Talks, in fact, went into the last possible day for consideration by a House and Senate Conference Committee. On April 22, Conybeare,
Kato, Portnoy and Bennett, with the help of Rep. Oshiro, finally worked out a compromise that all could live with. The bill passed
both legislative bodies unanimously on April 29 and was sent to Republican Gov. Linda Lingle, a former journalist, who signed the bill into law on July 2.
The measure is considered to be reporter-friendly. It protects news gatherers from being forced to reveal confidential
sources, or information that could lead to identifying sources. It protects unpublished information, even if it is not confidential.
It provides an absolute privilege for all civil cases except defamation, as well as a complete privilege for all non-felony criminal
cases.
Hawaii's bill also takes into account changing times and technologies by being the nation's first to explicitly include bloggers
and others not part of the mainstream media, through application of a function test. Nontraditional journalists will be protected
if they regularly disseminate news of significant public interest and engage in activities similar to their traditional counterparts.
Throughout the legislative process, the principle of inclusion essentially was unchallenged.
"More and more readers are abandoning newsprint in favor of reading their news online, particularly the younger people, who demand
both news and opinion that the commercial media are unlikely to provide," testified Hawaii blogger Larry Geller.
If there's a drawback for the news media, it's a 3-year sunset clause included just before final passage. Legislators said it would
give prosecutors time to assess the law's impact on criminal cases.
The shield law appears to be durable and able to stand the test of time. In testimony submitted by SPJ's Hawaii chapter,
newspaper editor Stirling Morita said such a law is vital to ensure a free flow of information crucial to a democracy, and
protect the "sacred" bond between reporters and sources, who often fear retribution to themselves or their families.
