media shield law

To ensure a vibrant and independent media, ACLU takes case to protect journalist from legal "fishing expedition"

JUNE 30, 2009

HONOLULU – The American Civil Liberties Union of Hawaii ("ACLU") and Honolulu attorney James J. Bickerton (of Bickerton Lee Dang & Sullivan) announced today that they will use Hawaii's new "media shield" law to protect a documentary filmmaker's work from sweeping subpoenas issued by a private homeowner over a land-use dispute on Kauai.

Plaintiff Keoni Kealoha Alvarez is an independent filmmaker who has spent the last two years preparing a documentary about Native Hawaiian burial practices. Alvarez has spent countless hours conducting confidential interviews with kupuna, university professors, Kamehameha Schools trustees, Office of Hawaiian Affairs officials, experts from the Bishop Museum, and other community leaders.

In preparing this documentary, Alvarez was unwittingly drawn into a legal battle over the construction of Joseph A. Brescia's home on Naue Point on Kauai. Brescia discovered approximately 30 graves on the property and, for the last eight years, has fought with the Kauai/Niihau Island Burial Council, the Kauai Planning Commission, and Kauai residents – ultimately losing his case in the Hawaii Supreme Court.

Brescia is now pursuing a civil lawsuit against individuals he claims allegedly delayed construction on his property. In a search for relevant evidence, Brescia's attorneys have issued a sweeping subpoena demanding nearly all of Alvarez's unpublished interviews and raw video footage.

Bickerton said: "Alvarez's unpublished documentary footage is clearly protected by law against disclosure under Hawaii's 'media shield.' The law restricts attorneys from using the subpoena power of the court to compel protected information from journalists. Just as we expect and protect doctor-patient confidentiality because it fosters trust and healthy outcomes, journalists have, under the law, the same right to protect the confidentiality of their sources and unpublished materials.
 
This trust allows for a diverse, robust and independent media, which in turn gives us a more accountable and transparent system of government."

Alvarez explained, "As a journalist, I am trying to be as pono as I can in producing this film. I have promised everyone complete confidentiality, and I have promised everyone that the film and the interviews will not be released publicly until everyone in it has had a chance to review, comment, or object. Material that doesn't make it into the final published film is intended to remain confidential."

"The documentary deals with Hawaiian belief systems, burial practices, and issues that many people consider to be kapu," Alvarez continued to say: "If I'm forced to turn over these tapes we'll never be able to do a project like this again – lots of really important Hawaiian cultural preservation work simply won't happen because people will be too afraid to do it. The trust in the journalist will be destroyed."

Daniel Gluck, ACLU senior staff attorney, stated, "Hawaii's media shield law is designed to create an environment in which journalists like Alvarez can take on difficult and sensitive projects without having to fear court actions undermining their integrity. This case is about defending all media voices to make sure that attorneys cannot abuse the court's power – and cannot compromise journalistic integrity – just to 'fish' for information."

Attorney Bickerton was more direct: "Simply put, Brescia has no right to these materials. If he can't see that by reading the new law, we will ask the court to explain it to him."

Alvarez received a commendation from Governor Linda Lingle in 2005 for his accomplishments in helping to preserve Hawaiian culture.

In July 2008, Hawaii became the forty-ninth state (plus the District of
Columbia) to pass a media shield law.

Kauai Judge Rules that Hawaii's Media Shield Law Protects Documentary Filmmaker's Work

SEPTEMBER 3, 2009

HONOLULU – The ACLU of Hawaii today announced a victory for all journalists in Hawaii in the wake of Kauai Circuit Court Judge Kathleen Watanabe's ruling yesterday that Hawaii's new "media shield" law applies to independent filmmaker Keoni Alvarez and that he cannot be forced to reveal his unpublished work or his confidential sources.
  
After a court hearing, Judge Watanabe granted Alvarez's request for a protective order, meaning that Alvarez will not be subjected to an invasive deposition and is not required to respond to subpoenas demanding his work product.

The American Civil Liberties Union of Hawaii ("ACLU") and Honolulu attorney James J. Bickerton (of Bickerton Lee Dang & Sullivan) represented Alvarez, an independent filmmaker who has spent the last four years preparing a documentary about Native Hawaiian burial practices and who was unwittingly drawn into a legal battle over the construction of Joseph A. Brescia's home on Naue Point on Kauai.
  
Brescia's attorneys, in a search for evidence in support of his case, issued several sweeping subpoenas demanding nearly all of Alvarez's unpublished interviews and raw video footage and insisting that he answer questions about his observations and his activities in a deposition under oath.

Bickerton and the ACLU filed a motion for a protective order, asking Judge Watanabe to block the deposition and to prohibit Brescia from issuing more subpoenas to Alvarez.  Judge Watanabe granted both requests.

Bickerton said, "With this decision, the media shield law can now be confidently asserted by journalists seeking to protect their work.  The Judge ruled that the media shield law means what it says – journalists can protect their confidential sources and can't be forced to reveal their unpublished information."

Alvarez expressed relief, "I can continue to work on my projects with integrity – without fear that I may have to betray the trust of my interview subjects.  Without this ruling, people wouldn't trust me and I wouldn't be able to work on really sensitive projects like this one."

Daniel Gluck, ACLU senior staff attorney, stated, The court has enforced the Legislature's intent. This is a big win for the community because journalists now have the tools needed to distribute information and ideas – crucial for a strong, independent, and free press."

The mission of the ACLU of Hawaii is to protect the fundamental freedoms enshrined in the U.S. and State Constitutions. The ACLU of Hawaii fulfills this through legislative, litigation, and public education programs statewide. The ACLU of Hawaii is a non-partisan and private nonprofit organization that provides its services at no cost to the public and does not accept government funds. The ACLU of Hawaii has been serving Hawaii since 1965.

Kauai filmmaker Keoni Alvarez tests Hawaii’s media shield law…and wins 

September 14, 2009 

For the past four years, filmmaker Keoni Alvarez has been compiling footage for a documentary about Native Hawaiian burial rites. That’s a sensitive subject by itself, one rife with political, cultural and historical landmines, but things got even dicier when Alvarez was pulled into a dispute over the construction of a home on Kauai’s Naue Point. Attorneys for the man building the home, Joseph Brescia, tried to subpoena Alvarez’s interviews and raw footage and to force him to answer questions under oath.

That’s when the American Civil Liberties Union (ACLU) of Hawaii stepped in. Citing Act 210—better known as Hawaii’s “media shield law,” which was passed and signed last year—ACLU lawyers said Alvarez’s unpublished work and confidential sources were off-limits. Specifically, Act 210 protects journalists (defined in a broad sense) against being “required by a legislative, executive, or judicial officer or body…to disclose, by subpoena or otherwise…the source…of any published or unpublished information…[and] any unpublished information.”

Given that relatively unambiguous language, Kauai Circuit Court Judge Kathleen Watanabe rightly sided with Alvarez and granted his request for a protective order. As a test case, the decision bodes well for journalists and other disseminators of information who want to use—and test the limits of—the media shield law.

“The media shield law can now be confidently asserted by journalists seeking to protect their work,” said ACLU attorney James Bickerton, who represented Alvarez, in a release.

Alvarez said the ruling allows him to uphold his integrity, and to maintain credibility with wary subjects. “[Without the shield law], people wouldn’t trust me and I wouldn’t be able to work on really sensitive projects like this one,” he said.

The right to guard sources is a sacred one in the media, but it’s also been tested many times. Journalists don’t always win, and even when they do, putting up a fight can mean serious consequences, including jail time.

Act 210 does place restrictions on the protections it affords. The law is void if there’s probable cause to suggest the person claiming the privilege has committed, or is about to commit, a crime. Also, if the person has observed the commission of a crime, they may protect their information only if “[t]he interest in maintaining the privilege…outweighs the public interest in disclosure,” or if “[t]he commission of the crime is the act of communicating or providing the information or documents at issue.”

Act 210 does protect journalists from fines or imprisonment for claiming its privileges, meaning they can assert their rights without fear. And that’s what truly free speech is—speech that’s free not only from undue meddling or censorship, but free from fear.

keoni.jpg

Keoni Alvarez is a good example of why we need a Shield Law. He is also a reason to be thankful this time of year around Freedom of Information Day.
 

The Big Island documentary filmmaker without a media company behind him stood up to a developer's demands for his outtakes and backup materials in 2009.
 

With the help of the ACLU, he won, and his film soon will tell us about Native Hawaiian burial practices.

It was a film that Alvarez at one time thought of scrapping.
 

Joseph Brescia was building a house on Kauai near a Hawaiian cemetery. When construction started, Hawaiian burials were found on the property, and protests ensued. Alvarez was there to capture it for his film.
 

Little did he know he would be caught up in the middle of a lawsuit, to which he wasn't party.
 

Alvarez told a coalition of journalism organizations March 11 that he was ready to end the project rather than give up raw footage. That footage doesn�t give the whole picture of what people had to say, he said. It can take several takes to get what the people want to say correctly. 
 

"I feared their using things against people in the wrong way," he said.

"They should be prepared for it ... and not use other people's footage."

Alvarez is a perfect example of the important parts of Hawaii's Shield Law, says University of Hawaii journalism professor Gerald Kato. Alvarez is a  nontraditional journalist and he was protecting unpublished information.

House strips down Shield Law

Starbucks Ward 

9:00 a.m. - 11:00 p.m.

Starbucks Ward 

9:00 a.m. - 11:00 p.m.

Keoni Alvarez is a good example of why we need a Shield Law. He is also a reason to be thankful this time of year around Freedom of Information Day.
 

The Big Island documentary filmmaker without a media company behind him stood up to a developer's demands for his outtakes and backup materials in 2009.
 

With the help of the ACLU, he won, and his film soon will tell us about Native Hawaiian burial practices.

It was a film that Alvarez at one time thought of scrapping.
 

Joseph Brescia was building a house on Kauai near a Hawaiian cemetery. When construction started, Hawaiian burials were found on the property, and protests ensued. Alvarez was there to capture it for his film.
 

Little did he know he would be caught up in the middle of a lawsuit, to which he wasn't party.
 

Alvarez told a coalition of journalism organizations March 11 that he was ready to end the project rather than give up raw footage. That footage doesn�t give the whole picture of what people had to say, he said. It can take several takes to get what the people want to say correctly. 
 

"I feared their using things against people in the wrong way," he said.

"They should be prepared for it ... and not use other people's footage."

Alvarez is a perfect example of the important parts of Hawaii's Shield Law, says University of Hawaii journalism professor Gerald Kato. Alvarez is a  nontraditional journalist and he was protecting unpublished information.

Hawaii Legislative News: Journalists Go to the Capitol; Money, Money; Honoring a Hawaii Legend

March 13, 2013

Screen-shot-2013-03-13-at-7.21.14-AM.png

A Native Hawaiian filmmaker who was one of the first non-traditional journalists to use Hawaii’s 2008 journalism shield law to protect his work, is asking Hawaii lawmakers to make permanent the journalism shield law before it sunsets this year.

Keoni Kealoha Alvarez, president of Hawaiian Island Productions, is an independent filmmaker producing a historical documentary on native Hawaiian history and ancient burials in Haena on Kauai that will air on PBS in 2014.

After Kauai businessman Joseph Brescia subpoenaed Alvarez’s films, hard drives, unpublished notes and other correspondence in what Alvarez called a “fishing expedition”, the American Civil Liberties Union and local attorney Jim Bickerton used Hawaii’s Journalism Shield Bill to protect his unpublished work and sources.

 

Brescia, who wanted to building a home on Naue Point in Haena where 30 Hawaiian graves had been discovered, was blocked from doing so by the county. But he subsequently filed a lawsuit against 17 protesters who he claimed had trespassed to demonstrate on his property and also delayed construction of his home and cost him hundreds of thousands of dollars. Brescia wanted a copy of Alvarez’s films of the protest as evidence for his case.

Fifth Circuit Court Judge Kathleen Watanabe sided with Alvarez on September 2, 2009. As an outside party not involved in the lawsuit, the journalism shield bill protected Alvarez from having to turn over his work to Brescia.

Bickerton issued a statement on behalf of Alvarez, saying:  “With this decision, the media shield law can now be confidently asserted by journalists seeking to protect their work. The judge ruled that the media shield law means what it says — journalists can protect their confidential sources and can’t be forced to reveal their unpublished information.”

The Society of Professional Journalists brought Alvarez from Kauai to Oahu on Monday to meet with journalists to share his story. Alvarez also spoke to Senators at the capitol on Tuesday in hopes legislators would extend the five-year-old journalism shield bill before it sunsets this year.

Alvarez said as an independent filmmaker on a low budget production it was intimidating to have Brescia try to obtain all of his unpublished materials through an extensive subpoena. He disclosed that he had no intention of turning over what amounted to confidential communications, even if the judge ruled against him, and would have rather burned the materials to protect his sources and gone to prison than betray their trust.

The journalism shield bill extension, moving forward in House Bill 622, passed the House in January with amendments made by House Judiciary Chair Karl Rhoads. Journalists were disappointed with his amendments, because they believe the law is working and hoped it would remain untouched. However, they looked forward to vetting the bill in the Senate.

Senate Judiciary and Labor Chair Clayton Hee helped pass the first extension of the journalism shield bill two years ago before the 2008 law would sunset, but he also included a sunset date instead of making the law permanent so the law could be studied.

The attorney general’s office has suggested changes to the law that would weaken it, which journalists, the Society of Professional Journalists and the ACLU oppose.  Hee has not yet scheduled a hearing on HB 622, but must pass the bill out of his committee by April 4 or it will die.

ACLU Attorney Laurie Temple, who testified in favor of the bill in the House, told lawmakers at the January 29 committee hearing that freedom of the press promotes speech and self-governance for all Americans.

“Investigative reporting helps ensure that our government is open to public scrutiny. Liberty is lost without a free and independent press,” Temple said.

A “vibrant and meaningful” reporters’ shield will ensure that journalists continue to have the tools they need to hold the government accountable to the people, Temple said, adding it also will allow the press to continue to inform the public about substantial risks to health and safety without fear of government persecution.

The law would also allow journalists to maintain independence without access to information from confidential sources, Temple said.

“The Watergate scandal and the Pentagon Papers became public only after informants were assured anonymity. More recently, confidential sources broke stories about illegal government programs including torture, warrantless wiretapping, kidnapping, and detention. In retaliation, the government has used subpoenas to intimidate journalists into revealing sources and jailed them if they declined to name names. The government’s efforts to silence dissent are facilitated by the lack of a journalist’s privilege from identifying confidential sources,” Temple said.

Forty-nine states and D.C. recognize some form of reporters’ privilege. Hawaii’s law is considered by journalism groups across the country as one of the nation’s most progressive because it protects both traditional and non-traditional journalists and their unpublished materials and sources in civil cases.

The law was first passed in 2008 in part to help Hawaii Reporter defend itself in a similar situation.

Hawaii Reporter’s published and unpublished materials and correspondence records were subpoenaed in 2008 by retired auto dealer James Pflueger who was accused of causing the deaths of 7 people when his dam breached in March 2006 by his illegal grading.

Pflueger was also charged criminally by the attorney general on 7 counts of manslaughter and one count of reckless endangerment. Those charges are still pending.

Changes to Hawaii’s shield law ‘ignorant of what’s going on in the media world’

April 12, 2013

AP-Clayton-Hee.jpg

A proposed Hawaii law would limit the use of anonymous sources and would remove protections on other reporting done by journalists. According to some Hawaii journalists, the law, now passed by the state’s House and Senate and awaiting conference committee, would limit their ability to report on some important or high-stakes stories.

“The law would go from one of the best in the country (in terms of breadth of coverage) to probably the worst – under the Senate version,” said Stirling Morita, president of the Hawaii chapter of the Society of Professional Journalists, in an email interview. “There virtually would be no Shield Law.”

Hawaii’s 2008 shield law allows journalists to claim reporter’s privilege in keeping their sources secret in most civil cases (except defamation cases) and also provides qualified reporter’s privilege in criminal cases. The protections afforded by the law apply to reporters at all publications. It’s set to expire on June 30. This January the Hawaii House took up a measure to reauthorize it.

“We had hoped … [the House would] treat this legislation as a housekeeping measure” and only remove the sunset provision, said University of Hawaii professor Gerald Kato in a phone interview.

That wasn’t what happened.

amendments to the law. The amendments made reporter’s privilege in civil cases beyond defamation cases qualified, not absolute. That means that in a civil case, the reporter would have to meet certain standards to be able to claim reporter’s privilege.

The 2008 law was used by a Hawaiian filmmaker, Keoni Alvarez, in a civil case when he was subpoenaed to hand over footage he had shot of Hawaiian burial customs and a protest that was later relevant to the lawsuit. Alvarez was not one of the parties involved in the suit and claimed reporter’s privilege in refusing to give the plaintiff his unpublished footage. Under the amended bill it’s unclear whether Alvarez would be able to claim reporter’s privilege.

The bill also applies additional qualifications to the privilege in criminal cases and only said those who “validly” invoked the privilege would be protected.

After the legislation left the House, Sen. Clayton Hee added other amendments that attempt to define not just journalists but news organizations.

Hee’s amendment says news organizations must have subscribing members or be attached to a specific business model. For example, a “newspaper” is defined as a publication that puts out at least two issues a year, and would also need to be distributed on a subscription basis. By the terms of the Senate bill, The Huffington Post, for example, would probably not be considered a newspaper, magazine, wire service, or any other journalistic entity as defined by the bill, since it is a free publication.

In his speech to the Senate Judiciary Committee when he introduced the bill with the amendments he drafted, Hee displayed a 1948 photo of Harry Truman holding a copy of The Chicago Tribune bearing the headline “Dewey Defeats Truman,” and discussed other examples of journalists making errors in reporting, such as a 2007 report from Hawaii television station KITV News that a prominent businessman had died, which was later revealed to be incorrect.

“I don’t think the shield law is a mechanism which necessarily prevents errors,” Hee said in a phone interview. The point he was trying to illustrate, he said, was just because a report is aired or a news articles appears in print “does not make it accurate.”

Attorney Jeff Portnoy represents the Shield Bill Coalition, which supports only reauthorizing the original law. The House amendments are “still potentially livable,” Portnoy said.

But Hee’s amendments, Portnoy said, are “designed to gut the shield law.” Portnoy said it would be better to simply allow the 2008 law to expire than pass the new bill with the Senate amendments. “We’re better off letting courts determine the scope of the privilege,” he said.

When asked to address those who see shield laws as protections for sources who wish to remain anonymous, Sen. Hee said, “I don’t say too much to anybody who says that.”

Kato, who helped draft the 2008 law and is a member of the coalition, says Hee’s amendments “would turn a shield into a sword.”

Linking business models to legitimacy

The precedent for reporters’ privilege in the U.S. was set in a landmark 1972 U.S. Supreme Court case, Branzburg v. Hayes. The case established conditions for when a journalist could be compelled to testify during a grand jury hearing, the closed-door, private hearings that establish whether someone will be charged with a crime. Since Branzburg, some states have codified reporters’ privilege or established a legal precedent for the privilege in state courts.

“It’s for the very fact that Branzburg was decided the way it was that we felt it was necessary to have a shield law,” Kato said.

In a phone interview, Honolulu Star-Advertiser Managing Editor Ed Lynch said his paper doesn’t use anonymous sources lightly.

“We don’t let people spout personal opinions anonymously,” he said. “It’s got to be factual information that we could not get otherwise and that we think is critical to telling an important story.” He added that any information gathered from anonymous sources is not merely accepted at face value.

“It’s important to note that we verify factual information given to us by a source who remains anonymous,” Lynch said.

Two Hawaii senators voted to move Hee’s bill to the Senate floor “with reservations.” Sen. Laura Thielen voted no.

“I think we’re being too traditional in our approach to what is journalism in the Senate version of the bill,” Thielen said in a phone interview. “I think we need to include online, digital media, nonsubscription and give the flexibility to journalists” who are looking for new revenue models, she said. “They’re not reaching people through those traditional models.”

Sen. Thielen said the bill comes at a time when journalism outlets are “casting about” for ways to earn revenue as the traditional models begin to die out. While traditional newspapers and magazines still abound, she said she was “not comfortable” setting a definition for journalists or their work that didn’t acknowledge that the field was changing.

“Under Sen. Hee’s bill, he’s trying to link your business model to whether or not you’re a legitimate journalist,” said Patti Epler, editor of Honolulu Civil Beat. Civil Beat is a subscription news publication that would be able to claim reporters’ privilege under the amended bill, but Epler said the proposed changes indicate that Sen. Hee is “out of touch” with what’s happening in the industry.

“There’s just so many things about online journalism that are exactly the same as the old print or broadcast or NPR world,” she said. “It just seems like he’s ignorant of what’s going on in the media world… You can be a very traditional journalist and work in what might now be considered a nontraditional media platform.”

The Star-Advertiser’s Lynch says if the shield law bill were passed, it would harm Hawaii journalism.

“Certain stories will not be told if a source cannot remain confidential,” he said. “It’s hard to explain to the layperson how devastating that would be to the free press in Hawaii.”

Others outside the Senate are continuing to lobby the Hawaii Congress to save the original shield law. The ACLU of Hawaii hasreleased a statement criticizing the proposed changes, and Epler and Kato both wrote columns about the bill and how reporting has changed in the online era. For Kato, the debate is the culmination of years of work.

“I’ve spent five years working on this,” he said. “It would be a giant step backwards…Jeff and I especially worked so long and hard on getting a good law in place, to see it torn apart like this is just intolerable.”

Hawaii Shield Law Resuscitated

February 26, 2015

A proposed Hawaii law would limit the use of anonymous sources and would remove protections on other reporting done by journalists. According to some Hawaii journalists, the law, now passed by the state’s House and Senate and awaiting conference committee, would limit their ability to report on some important or high-stakes stories.

“The law would go from one of the best in the country (in terms of breadth of coverage) to probably the worst – under the Senate version,” said Stirling Morita, president of the Hawaii chapter of the Society of Professional Journalists, in an email interview. “There virtually would be no Shield Law.”

Hawaii’s 2008 shield law allows journalists to claim reporter’s privilege in keeping their sources secret in most civil cases (except defamation cases) and also provides qualified reporter’s privilege in criminal cases. The protections afforded by the law apply to reporters at all publications. It’s set to expire on June 30. This January the Hawaii House took up a measure to reauthorize it.

“We had hoped … [the House would] treat this legislation as a housekeeping measure” and only remove the sunset provision, said University of Hawaii professor Gerald Kato in a phone interview.

That wasn’t what happened.

amendments to the law. The amendments made reporter’s privilege in civil cases beyond defamation cases qualified, not absolute. That means that in a civil case, the reporter would have to meet certain standards to be able to claim reporter’s privilege.

The 2008 law was used by a Hawaiian filmmaker, Keoni Alvarez, in a civil case when he was subpoenaed to hand over footage he had shot of Hawaiian burial customs and a protest that was later relevant to the lawsuit. Alvarez was not one of the parties involved in the suit and claimed reporter’s privilege in refusing to give the plaintiff his unpublished footage. Under the amended bill it’s unclear whether Alvarez would be able to claim reporter’s privilege.

The bill also applies additional qualifications to the privilege in criminal cases and only said those who “validly” invoked the privilege would be protected.

After the legislation left the House, Sen. Clayton Hee added other amendments that attempt to define not just journalists but news organizations.

Hee’s amendment says news organizations must have subscribing members or be attached to a specific business model. For example, a “newspaper” is defined as a publication that puts out at least two issues a year, and would also need to be distributed on a subscription basis. By the terms of the Senate bill, The Huffington Post, for example, would probably not be considered a newspaper, magazine, wire service, or any other journalistic entity as defined by the bill, since it is a free publication.

In his speech to the Senate Judiciary Committee when he introduced the bill with the amendments he drafted, Hee displayed a 1948 photo of Harry Truman holding a copy of The Chicago Tribune bearing the headline “Dewey Defeats Truman,” and discussed other examples of journalists making errors in reporting, such as a 2007 report from Hawaii television station KITV News that a prominent businessman had died, which was later revealed to be incorrect.

“I don’t think the shield law is a mechanism which necessarily prevents errors,” Hee said in a phone interview. The point he was trying to illustrate, he said, was just because a report is aired or a news articles appears in print “does not make it accurate.”

Attorney Jeff Portnoy represents the Shield Bill Coalition, which supports only reauthorizing the original law. The House amendments are “still potentially livable,” Portnoy said.

But Hee’s amendments, Portnoy said, are “designed to gut the shield law.” Portnoy said it would be better to simply allow the 2008 law to expire than pass the new bill with the Senate amendments. “We’re better off letting courts determine the scope of the privilege,” he said.

When asked to address those who see shield laws as protections for sources who wish to remain anonymous, Sen. Hee said, “I don’t say too much to anybody who says that.”

Kato, who helped draft the 2008 law and is a member of the coalition, says Hee’s amendments “would turn a shield into a sword.”

Linking business models to legitimacy

The precedent for reporters’ privilege in the U.S. was set in a landmark 1972 U.S. Supreme Court case, Branzburg v. Hayes. The case established conditions for when a journalist could be compelled to testify during a grand jury hearing, the closed-door, private hearings that establish whether someone will be charged with a crime. Since Branzburg, some states have codified reporters’ privilege or established a legal precedent for the privilege in state courts.

“It’s for the very fact that Branzburg was decided the way it was that we felt it was necessary to have a shield law,” Kato said.

In a phone interview, Honolulu Star-Advertiser Managing Editor Ed Lynch said his paper doesn’t use anonymous sources lightly.

“We don’t let people spout personal opinions anonymously,” he said. “It’s got to be factual information that we could not get otherwise and that we think is critical to telling an important story.” He added that any information gathered from anonymous sources is not merely accepted at face value.

“It’s important to note that we verify factual information given to us by a source who remains anonymous,” Lynch said.

Two Hawaii senators voted to move Hee’s bill to the Senate floor “with reservations.” Sen. Laura Thielen voted no.

“I think we’re being too traditional in our approach to what is journalism in the Senate version of the bill,” Thielen said in a phone interview. “I think we need to include online, digital media, nonsubscription and give the flexibility to journalists” who are looking for new revenue models, she said. “They’re not reaching people through those traditional models.”

Sen. Thielen said the bill comes at a time when journalism outlets are “casting about” for ways to earn revenue as the traditional models begin to die out. While traditional newspapers and magazines still abound, she said she was “not comfortable” setting a definition for journalists or their work that didn’t acknowledge that the field was changing.

“Under Sen. Hee’s bill, he’s trying to link your business model to whether or not you’re a legitimate journalist,” said Patti Epler, editor of Honolulu Civil Beat. Civil Beat is a subscription news publication that would be able to claim reporters’ privilege under the amended bill, but Epler said the proposed changes indicate that Sen. Hee is “out of touch” with what’s happening in the industry.

“There’s just so many things about online journalism that are exactly the same as the old print or broadcast or NPR world,” she said. “It just seems like he’s ignorant of what’s going on in the media world… You can be a very traditional journalist and work in what might now be considered a nontraditional media platform.”

The Star-Advertiser’s Lynch says if the shield law bill were passed, it would harm Hawaii journalism.

“Certain stories will not be told if a source cannot remain confidential,” he said. “It’s hard to explain to the layperson how devastating that would be to the free press in Hawaii.”

Others outside the Senate are continuing to lobby the Hawaii Congress to save the original shield law. The ACLU of Hawaii hasreleased a statement criticizing the proposed changes, and Epler and Kato both wrote columns about the bill and how reporting has changed in the online era. For Kato, the debate is the culmination of years of work.

“I’ve spent five years working on this,” he said. “It would be a giant step backwards…Jeff and I especially worked so long and hard on getting a good law in place, to see it torn apart like this is just intolerable.”