Monday, November 26, 2007

Proposed Shield Law - Devil is in the Details

Photo: left to right - Jim Dooley, Ian Lind, Jeff Portnoy, Marie Milks, Gerald Kato and Chris Conybeare at the podium.

The room was packed and the hotel had to bring in an extra table for lunch. If that is any indication of the interest for or against a proposed shield law, the bill should receive a lot of thoughtful and engaging discussion at the 2008 legislature. Thanks to the Honolulu Media Council for putting on a great program. I did not record it, but here are my notes:

The panelists at the main table were Professor Jon Van Dyke from the UH William S. Richardson School of Law; Jim Dooley from The Honolulu Advertiser; Ian Lind, former Honolulu Star-Bulletin reporter, currently a free-lance writer and political blogger at; Jeff Portney, attorney; Marie Milks, former state judge, who served as moderator; and Gerald Kato, head of the journalism department at UH.

Jon Van Dyke started off with a powerpoint on the history and background of the shield law issue. He summarized pertinent case law starting with the US Supreme Court case Branzburg v. Hayes (1972) and ending with Jenkins v. Liberty Newspapers (1999). He also provided the status of the federal shield law bill which passed easily in the U.S. House, 398-21. Hawaii Congressman Neil Abercrombie was the only Democrat to vote against the bill, and there was a brief discussion on his stated opposition -- that it was unconstitutional -- and whether the constitution even addresses the protection. Van Dyke believes it does not - that there is no absolute privilege for journalists, and that the press is expected to cooperate in criminal investigations.

Jeff Portnoy believes that a shield law for Hawaii is necessary and required. He described a conversation that he had with City Prosecutor Peter Carlisle, who apparently does not believe a shield law is necessary. That's because, Portnoy claims, he and Carlisle have always been able to negotiate a reasonable solution whenever there have been subpoenas of reporters. Portnoy argues, however, that there will come a day when Carlisle will not be prosecutor and he will not be doing the same thing he's doing, so why leave it up to chance that others will be able to work so collaboratively. Besides, it has not always been the case - remember the time Matt Levi was put in jail for refusing to identify a source?

Portnoy said that the legislature will have the hardest time defining what is a journalist and what is a blogger. Also, how extensive should the law be? Should it extend to Grand Juries? He believes the shield law should be as absolute as possible with some minor exceptions.

Jim Dooley pointed out that he was the only working journalist at the table, and his comments were based on whether such a law would impact on his daily work. I'm not clear on whether he favors a law or not. I got the sense that there are certain situations in which the protection would help to get sources to talk more freely and to not fear that a reporter would "rat him out" when push came to shove. On the other hand, he does not feel comfortable with government licensing or even defining journalists.

Portnoy added that it would be a mistake to frame the issue around the protection of confidential sources, because the real need is to protect the reporter's day to day work product - the notes, the computer files, the photographs, the footage, etc.

Ian provided a different perspective. I'm sure that he will go into greater detail of his position on his own blog. He offered the perspective that if the shield law did not include bloggers, that it would mainly be a protection for corporate media, and a step toward the government licensing of media. And in that sense, it would be unconstitutional.

Dave Briscoe from the AP offered an opinion that he did not want government to define what a journalist is or is not and asked whether it was possible to shield the product rather than who produces it.

If there are others who attended today, please feel free to add to this.

1 comment:

charley foster said...

Good notes. Thanks for the outline.

My concern about a shield law goes to the right of defendants to subpoena all testimony and marshal all evidence available to aid their defense. Any shield law should exclude information sought by a criminal defendant or, if the journalist has testified for the defendant, any information sought on cross-examination by the prosecution. IMHO.