Hawaii Legislature Passes Shield Bill

The Hawaii legislature passed a reporters' shield bill Tuesday that will protect both traditional and non-traditional journalists from compelled disclosure of their confidential sources and information and materials obtained or prepared during the newsgathering process. In one sense, this shield bill is a positive step forward, as it expressly contemplates that online publishers carrying out journalistic functions will take advantage of its protections. On the other hand, the bill places too many limitations on the ability of non-traditional journalists to invoke its protection.

Section 621(b) of the bill allows anyone to claim the protection afforded to traditional journalists if that individual can show that:

  • he or she has "regularly and materially participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public by means of tangible or electronic media";
  • his or her role is similar or identical to that of a journalist or newscaster, taking into account the method of dissemination;
  • his or her interest in protecting sources and unpublished information is similar to that of a journalist; and
  • the public interest is best served by affording protection under the circumstances.

The first requirement is troubling because it potentially excludes online publishers who do not devote a substantial amount of time to journalistic activity, but do engage in isolated acts of journalism. Instead of recognizing that the Internet allows anyone to report on issues of public interest at any time, the bill appears to protect only those who act like traditional journalists on a regular basis. The second requirement compounds the problem by requiring that the person seeking protection play a role similar or identical to that of a journalist; this unnecessarily ties protection to a potentially outmoded concept of what a "real journalist" does. All this is unfortunate, given that the version of this bill originally passed in the Hawaii House of Representatives would have protected anyone who engaged in journalistic activities in the situation under dispute.

Like the shield law recently passed in Maine, the statute does not apply if the requested sources or information are necessary to a civil defamation lawsuit or the investigation, prosecution or defense of a felony, but only if all other means have failed to produce the information. The bill also precludes protection when the disclosure is found to be necessary to “prevent serious harm to life or public safety.”

The new shield bill will come into force as soon as Hawaii Governor Linda Lingle signs it into law.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)


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