Shield Law bills at the 2015 Legislature

By Gerald Kato
University of Hawaii/Media Council Hawaii

I am writing this to let you know what's going on. It reflects my own opinion and not that of anyone else on what was the Hawaii Shield Law Coalition.

You may have read news accounts of a number of bills introduced to protect journalists and their confidential sources of information this legislative session. While it's good to know that sentiment still exists for the "shield law," you should be careful about which bills to support.

A bill that's gotten attention, HB 17 Relating to Evidence, was introduced by Rep. Scott Saiki, the state House majority leader. The bill purports to reinstate Act 210, Session Laws of Hawaii 2008, the news privilege, and incorporate "some of the suggestions made by the (Judiciary's evidence) standing committee."

The so-called "suggestions" of the evidence committee are the amendments first proposed by Rep. Karl Rhoads, House judiciary chair, that would change key protections for journalists in the law. I don't see these suggestions in the evidence committee report. Rhoads' proposed change is unacceptable. Here's my reading of the differences between the law that was enacted in Act 210, and HB17: 

-- Act 210 Section C (3) specifies exemptions to the confidentiality privilege. Those exemptions are limited to "investigation, prosecution, or defense of a felony, or to a civil action for defamation ... " In other words, there would be strong protections outside of serious felonies and defamation lawsuit.

-- HB17 proposes to limit those protections by changing Section C (3) through new language that narrows the exemption to "investigation, prosecution, or defense of a felony, potential felony, or serious crime involving unlawful injury to persons or animals, or to a civil action ... " (change underscored). Make no mistake, this is a major change since the only clear exemption would be in misdemeanor cases, and even then, those cases may come under the heading of "potential felony." Probably more frightening is that this language would make journalists vulnerable in all civil cases, which is an area where journalists are especially vulnerable to subpoenas. The net effect is that the exemptions would swallow the protections.

What we should be fighting for is full restoration of Act 210 without changes. Act 210 was arrived at after compromise by media representatives and the Attorney General. We did not get everything we wanted, but the bill protected traditional and non-traditional journalists and provided strong protection for confidentiality of news sources and information by narrowing the exemptions to felonies and defamation cases. HB17 threatens to unravel that compromise. Make no mistake, that if the language currently proposed in HB17 gets through, we would be in a worse position then we were without a law. There are bills introduced that would fully restore Act 210. Let's work to get full restoration of Act 210.

Here are bills introduced so far:

HB17 (Scott Saiki): Includes the new language
HB295 (Gregg Takayama): Full restoration
SB496 (Laura Thielen): Full restoration