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One Hawaii Senator Kills Media Shield Law – Senator Clayton Hee Goes on My Naughty Liar’s List

First amendment attorney Jeff Portnoy tells reporters that one Senator – Judiciary Chair Clayton Hee – killed Hawaii’s journalism shield law this 2013 legislative session even though it is considered one of the best in the country because of his distrust and disdain for the media.

[youtube=http://youtu.be/LtH4jtUF4AU]

 

Hawaii State Senate Statement Regarding House Bill 622 – (Journalism Shield Law)

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“Passing the amendment without consulting with the other chamber affirmatively kills the bill.  The draft that was passed out of conference in the form of HB622, HD1, SD1, CD1 continued the additional protections of a shield law above and beyond what is provided by Hawaii’s constitution for the press.

The floor amendment presented a very substantive change to the conference draft that was agreed upon by the House and Senate conferees. Every draft of the bill up until that point sought to make the shield law permanent.  To introduce such a substantive change, moments before the Senate began its floor session, lacked the transparency and openness that the public expects and deserves. “

-Senate Majority Leader Brickwood Galuteria

 

Hawaii Bloggers and Journalists Go Down in Flames

Some of the legislators words:

[youtube=http://www.youtube.com/watch?v=zNxYjEjuPpE]

Commentary: UH Professor Gerald Kato “The Endgame of the Shield Law…”

Some thoughts on today.

The endgame for the shield law played itself out in the state Senate and House today after efforts to extend the life of the law failed.

The Senate passed a draft bill authored by Sen. Clayton Hee by a vote of 16-9. But the House hours earlier amended that bill to eliminate changes and extend the life of the shield law by two years. The net result is that there are now two different bills, and that means the bill dies Thursday.

Without legislation extending its life or making it a permanent part of Hawaii statutes, the shield law will sunset June 30, 2013. It will die a victim of Hee’s visceral disdain for the media and the failure of political will in the state Senate.

House leaders Scott Saiki and Cynthia Thielen courageously worked to amend the bill in the House to extend the existing law for two years to give parties time to take a closer look at the issues. The Senate knew of the House action but ignored pleas from shield law supporters to consider an extension amendment to reconcile the bills and keep the existing shield law alive. Instead, Hee pushed through his bill to define journalists and journalism in a narrow way, eliminate protection for non-traditional journalists and digital media publications. Hee’s bill was nothing more than an effort to replace a good law with a zombie of his own creation.

Nine senators stood against Hee’s bill. They were: Laura Thielen, Michelle Kidani, Roslyn Baker, Sam Slom, Russell Ruderman, Les Ihara, Willie Espero, Josh Green, and Clarence Nishihara.

There was a lot of fingerpointing back and forth and scratching of heads by senators about why an amendment to extend the life of the shield law never came up on the floor of the Senate. A lot of unaccountability politics in the kabuki of the Senate.

While it’s true that nothing is ever dead at the Legislature until everyone leaves the building, and maybe not even then, it is unlikely that there will be an extension to the existing shield law.

We’ll have a lot more to say about this in the days to come. But it is a shame that Hee’s antics wins out, and he kills one of the best shield laws in the country. We will have no shield law, but we must continue to have the collective will and desire to defend the First Amendment.

Gerald Kato

Attorney Jeff Portnoy’s Response to Senator Hee’s Comments on Floor of Senate on April 17 – Re: Hawaii Shield Law

Click to read where the bill stands

Click to read where the bill stands

Dear President Kim and Members of the Senate:

As I said in my earlier letter to you, I do not wish to engage in a pointless debate with Sen. Clayton Hee on the merits of HB622 Regarding Evidence. However, Sen. Hee’s insistence on distorting the record requires a response.

The Judiciary Evidence Committee’s Report of December 2011 states that it recommends that “the sunset provision be eliminated and that Act 210 be integrated into H.R.S. Ch. 621.” The committee says the Legislature might, “were it so inclined,” look at sections of the law. Nowhere is there any indication of a minority report or dissenting vote on the committee. Committee discussions were confidential so if Deputy Attorney General Diedre Marie-Iha wishes to cast a public dissent, that is her right. However, in testimony submitted to the House Judiciary Committee on February 2, 2012, on a matter related to the shield law, Judge Glenn Kim, chair of the Evidence Committee, said this:

The Judiciary supports making the news media privilege permanent by repealing the scheduled sunset date of Act 210, Session Laws of Hawaii 2008, as amended by Act 113, Session Laws of Hawaii, as proposed in House Bill No. 2763, which is currently pending hearing by this committee.” (Underscore added)

Nothing Judge Kim said at that time would suggest that the committee was anything but supportive of the shield law.

I should note that during the senate judiciary committee hearing on HB622 on March 28, 2013, Deputy Attorney General Marie-Iha submitted her testimony late so it was not available to the committee or the public until moments before she testified. I did not have an opportunity to read it, much less comment at length about what she had to say.

Sen. Hee contends that at that hearing the news media were unable to provide examples of how the shield law has been used over the past five years. He bases this statement on the testimony of one testifier, whom Sen. Hee badgered during questioning. Sen. Hee gave no one else an opportunity to respond to his question. If he is interested, I can cite examples where the shield law has been used to ward off problems. There are the Ka Loko Dam breach case on Kauai and the Big Island voter fraud case. The shield law was invoked in these cases to head off major problems involving confidential sources used in news gathering. And having the law deters others from trying to force disclosure because they know the law prevents going on fishing expeditions for news sources and unpublished information.

If Sen. Hee is interested in more information on this matter, I would be happy to provide it in depth and detail when I return. I offer these comments now in the interest of a clear record for you to make rational decisions involving important matters of a free press in Hawaii.

Sincerely,

/s/ Jeffrey S. Portnoy, Esq.

And in other news today:

Blogger Law

Click for more information (Subscription based)

Hawaii Tribune Giving Out IP Address of Commenters on Their Website – Attorney Trying to Make Reporter Turn Over Notes

In an article written today by John Burnett of the Hawaii Tribune entitled, “Subpoena seeks names of people who wrote online,” Hilo Attorney Ted Hong has requested personal information regarding folks that commented on an article written on January 30th, 2012.

Subpoena

Click to read article

The newspaper complied with the demand and gave away the information of their readers, which they can legally do.

…Hilo attorney Ted Hong, who’s representing Elections Office Administrator Pat Nakamoto in her defamation lawsuit against former County Council Chairman Dominic Yagong and former County Clerk Jamae Kawauchi, filed the subpoena on Jan. 4 in 3rd Circuit Court. In it, he’s seeking the identities of individuals posting under the user-names “punatic,” “Taxedtodeath,” “punatic8,” “QQ,” “548991” and “rsjm.”

The document seeks “any and all account information, including but not limited to, name, birthdate, mailing address, telephone number(s), Internet protocol address, (and) name of Internet service provider … .” The deadline for providing the information is today.

A legal disclaimer on the Tribune-Herald’s website contains the statement: “IP and email addresses of persons who post are not treated as confidential records and will be disclosed in response to valid legal process.”

“We are complying with the subpoena requests,” said David Bock, Tribune-Herald editor and news director for Stephens Media Hawaii. “We are very protective of our news sources and reporters’ work, but we have no control over what members of the public write in our website’s comments section…”

Unfortunately, Ted Hong is also requesting that one of the paid journalists to turn over her notes in the case regarding this same case involving the fired election workers.

Hawaii has a shield law that protects both bloggers and journalists from turning over their sources.

“Hawaii allows anyone to claim protections under the shield law so long as they meet certain conditions, such as proving they write regular reports of substantial public interest.” (Civil Beat 8/31/12)

Burnett of the Tribune Herald writes:

“…West Hawaii Today also was subpoenaed by Hong, seeking the notes of Stephens Media reporter Nancy Cook Lauer regarding stories she wrote about the firing of Nakamoto and three other elections workers, and the flap that ensued.

Bock said Stephens Media is fighting that subpoena, noting that Hawaii has a “shield law” protecting journalists in most cases from having to turn over their notes or the identities of their sources…”

I hope that Nancy Cook Lauer and the folks at West Hawaii Today stick to their guns and do not allow their reporters notes to be turned over to investigators.  It would be a huge step back in journalism and folks would no longer feel comfortable talking to reporters about things they know about if they might get in trouble for it in the future.

I’ve noticed that Tiffany Edwards Hunt of the Big Island Chronicle and David Corrigan of Big Island Video News have been pretty quiet and not blogging as much of late.  I wonder if they also got served with these subpoenas?

Maui Police … Trying to Act Like “Big Brothers”

Last month, I blogged about Tommy Russo’s run in with Dog the Bounty Hunter and the Maui Police in my post Maui Police Rough Up MauiTimes Publisher Over Dog the Bounty Hunter Incident.

Well it turns out the Maui Police are really overstepping their boundaries and they have subpoenaed the IP addresses of folks that made comments on the MauiTimes website over a 24 hour period of time.

Larry Geller over at Disappeared News writes:

If the report of the original incident is accurate, Maui police are badly in need of an education. Generally, police may not prevent a citizen, whether a reporter, blogger, or ordinary shmo, from photographing them from a public vantage point as they go about their business (this is one of he issues in the MauiTime article which attracted the comment in question). They also may not gather IP addresses, which can be used to identify persons who access a website, on a whim. In our society, unfortunately, police are seldom held accountable when they themselves break the law.

There seem to be a few things Maui police need to learn about the first amendment at least. As a blogger I was glad to learn that MauiTime publisher Tommy Russo will fight the subpoena.

I have to say that if the police ever asked me to turn over the IP addresses of anyone whoever commented on my site I would tell em to go to hell!

Bloggers are protected in the State of Hawaii via the Journalism Shield laws and we do not have to cite our sources of information and/or turnover to police IP Addresses of folks that comment on our site.

The Hawaii Legislature has passed a two-year extension of a law protecting journalists from having to reveal sources or unpublished information in court….

…Hawaii’s journalist shield law is stronger than those in most other states because it also protects online bloggers.  Thirty-six states and the District of Columbia have permanent shield laws.