Big Island Filmmaker Caught Up in Shield Law and Subpoenaed

*edit* I was just notified this was also in the Star-Bulletin today as well as the Honolulu Advertiser’s Breaking news last night.  (Where have I been?)
First Amendment Center:

The American Civil Liberties Union has invoked a new state law to protect a Big Island documentary filmmaker subpoenaed to provide his unpublished interviews and raw video footage.

The shield law, enacted last year, protects journalists and others who are acting as news-gatherers from having to testify or produce evidence.

The subpoenas stem from a property dispute in Kauai. For eight years, landowner Joseph Brescia had sought to build on a parcel on Naue Point where 30 graves had been discovered, according to the ACLU.

Though the state Supreme Court ruled against his construction plans, Brescia filed civil lawsuits against those he contended delayed his project.

As part of those suits, Brescia subpoenaed Keoni Kealoha Alvarez, who for two years has been documenting Native Hawaiian burial practices. Alvarez is not a party in the suits.

The subpoenas, addressed to Alvarez personally and to his video production firm, demand video recordings that Alvarez did not use in his documentary as well as interviews that have not been published.

In a statement, Alvarez said he promised his interview subjects complete confidentiality because the subject matter — Native Hawaiian belief systems and burial practices — are generally considered to be taboo.

“If I’m forced to turn over these tapes, we’ll never be able to do a project like this again,” he added. “The trust in the journalist will be destroyed.”

Under the shield law, Alvarez is protected from complying with the subpoena, said ACLU senior staff attorney Daniel Gluck. The ACLU has sent Brescia’s lawyer a letter saying the shield law voids the subpoenas, Gluck said, adding that it may be the first time since its enactment that the law has been invoked.

Another Alvarez lawyer, James Bickerton, said in a statement, “Simply put, Brescia has no right to these materials. If he can’t see that by reading the law, we will ask the court to explain it to him.”

Brescia can request a court hearing to have his subpoena enforced, Gluck said.

Gov. Linda Lingle signed the legislation July 3, 2008.

Both traditional and online journalists are protected under the law, though reporters working for Internet sites have to show that they’re serving the public interest before they can be granted the safeguard.

Thirty-five states and the District of Columbia have enacted shield laws, according to the Reporters Committee for Freedom of the Press. However, Gluck said all 50 states, either through statute or court rulings, have some level of protections for reporters.

Brescia and his lawyer could not be reached for comment for this story.

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From the Star-Bulletin:

Keoni Alvarez invokes the state’s media-shield law and gets some help from the ACLU

By Star-Bulletin Staff and News Services

POSTED: 01:30 a.m. HST, Jul 01, 2009

A documentary filmmaker from the Big Island is the first person to invoke Hawaii’s media-shield law, which took effect last year.

The law protects journalists from being forced to reveal news sources and unpublished material and information.

The filmmaker is Keoni Kealoha Alvarez.

In Kauai Circuit Court, California businessman Joseph Brescia is suing 17 people he claims trespassed and protested on his property on Kauai’s North Shore, delaying the construction of his home at Naue Point. His lawyer, Philip Leas, said the delays cost Brescia hundreds of thousand of dollars.

Brescia issued subpoenas for video Alvarez recorded of the protests. Leas says he knows the video exists because Alvarez provided some to one of the defendants to use in her defense.

“That’s selective use,” Leas said, “We should be allowed to use all of it.”

The American Civil Liberties Union and attorney James Bickerton are representing Alvarez.

Bickerton said Alvarez recorded the video for an upcoming documentary and offered to give Brescia the same video he provided the defendant. But he will not turn over the rest.

He said Brescia wants all video depicting the property, the protests on the property, Brescia’s agents, the lawsuit and burials on the property.

“Brescia has no right to these materials,” Bickerton said.

Alvarez said the documentary deals with Hawaiian belief systems, burial practices and issues that many people consider kapu. He said if he’s forced to turn over the video, he will never be able to do a similar project again.

Leas said if Alvarez doesn’t want to turn over the video, he has to establish that he qualifies for protection under the shield law.

“We’re not aware that he’s a journalist,” he said.

Bickerton said Alvarez qualifies because he regularly participates in the publishing of news. Alvarez is president of Hawaiian Island Productions and has produced at least one other documentary.

Brescia has been in and out of court and has gone back and forth between state and county agencies for approval to construct his home since his contractor found at least 30 Hawaiian burials on the property.

One Response

  1. Good stuff you have posted here Damon. Would be great to have this on the Big Island Press Club web site.

    Any chance you could do that for us?

    I won’t be back from my trip until next week and its too difficult to post things from the hotel computers.

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