Tuesday, March 26, 2013

Commentary: Hawaii's shield law is in peril; Senate hearing scheduled for Thursday

publisher, All Hawaii News

Back when I was a gung-ho young reporter, I thought the best thing for my career would be to go to jail to protect a source. The fame, the notoriety!

Every Deepthroat would want to meet me in a parking garage and tell me everything about government wrongdoings, every newspaper would want to hire me. Pulitzer Prizes would shower onto my desk.

Now that I have a few decades of journalism under my belt, the prospect doesn't look nearly as inviting. But I'm still ready to go.

I am under subpoena because of a series of articles I wrote about events at the Hawaii County Elections Office leading up to a bungled primary election. An attorney suing the government thinks sitting me down in a deposition and making me turn over notes and identify sources will somehow help his case.

I'm not so sure about that. Heck, even I can't read my notes a few weeks later. They're little more than memory prompts. A lot of water goes under that bridge over the course of weeks.

As far as identifying who told me what? Fuhgeddaboudit. In my professional life, just like in my personal life, if I say I am keeping a confidence, I am keeping a confidence. A fact is a fact. Doesn't matter who said it, it's still a fact, as far as I'm concerned.

But enough about me.

This is about Hawaii's Shield Law-- a model for the nation -- and how we're about to lose it. We're about to lose it because the Hawaii Legislature is in the process of watering it down to the point of ineffective pabulum, or even worse, letting it expire altogether on June 30.

The state Senate Judiciary Committee will be hearing this bill at 10:30 a.m. Thursday, March 28, in conference room 016 of the Capitol. Everyone has a right to submit written testimony, or show up to speak.

Here's the testimony I submitted:

Testimony in support of HB 622, Hawaii Shield Law

Chairman Hee and Members of the Senate Judiciary Committee:

What if Watergate had never happened?

What if whistleblowers like Erin Brockovich were afraid to expose corporate and government wrongdoing that endanger people’s lives? What would our nation look like if everyday citizens were intimidated into keeping crucial information from the press?

What if the police, or trial lawyers seeking millions of dollars in damages, didn’t have to do their own legwork, bringing that burden of proof to a jury in the tried-and-true tradition of a judicial system guaranteeing civil rights? What if they could, instead, just scribble out a subpoena and grab a reporter’s notes about things that were told in trust and confidence?

That, my friends, is life without a shield law, also known as reporter’s privilege. It’s called a privilege for reporters, but the ones it really protects are the citizens, the whistleblowers.

Hawaii has such a shield law. Or it does, at least, until June 30. That’s the date the current law runs out, unless lawmakers make it permanent.

It's important that the law be made permanent without watering it down by exempting civil litigation and serious crime involving unlawful injury to persons or animals. Leaving in these amendments by the House Judiciary Committee would reduce coverage of the law to one of the lowest levels among the 40 jurisdictions that have shield laws, according to the Society of Professional Journalists.

This limited news media privilege against the compelled disclosure of sources and unpublished information has successfully protected a journalist and a documentary film producer in Hawaii since it was enacted almost five years ago. More importantly, it has stood as a model for other states and a beacon to a free press, preventing untold subpoenas and threats to the exercise of journalistic endeavors.

It is difficult to quantify the negative, so it is not known how many journalists were not compelled to turn over their notes and sources because of the shield law. In short, however, there has been no documented harm to the state because of the shield law, and at least two cases where the law served its purpose in furthering a free press.

Thirty-eight states, plus the District of Columbia, have substantial protections in place, according to the The Reporters Committee for Freedom of the Press.

Should Hawaii -- the Aloha State, the state that embraces privacy and individual liberties even more than most – be the state that fails to protect that brave individual who comes forward to voice concerns about wrongdoing and corruption? I hope not.

Nancy Cook Lauer
Publisher, All Hawaii News

 If you also care about a free press, you can do your part. You can submit testimony by following these steps:

  1. Go to http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=HB&billnumber=622&year=2013
  2. Go to Hearing Notices in the lower right corner. Click on view for the JDL committee. This will open a new window with the Hearing Notice.
  3. At the bottom under Decision Making to follow if Time Permits. Click HERE to submit testimony. (Click on HERE which opens another window)
  4. Under Senate Testimony Procedures there is a box. Go to website and click on SUBMIT ONLINE TESTIMONY, which takes you to another window
  5. Enter a measure to retrieve the corresponding hearing notice. (enter HB622)
  6. This will go to another window, which will ask for name, email, and a bunch of questions. Don’t forget to attach your testimony file in the box.
  7. Hit Submit and verify.

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