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First Amendment attorney: Hawaii journalists left with shield legislation that’s an ‘abomination’

By   /   May 2, 2013  /   News  /   No Comments

(Photo by Mel Ah Ching)

Senate Judiciary and Labor chairman Clayton Hee.

By Malia Zimmerman | Hawaii Reporter

HONOLULU — Senate Judiciary and Labor chairman Clayton Hee is not known for his compassion, consistency or tolerance for mainland folk.

It is not uncommon for members of the public who go before his committee to be attacked, told they are not allowed to speak or grilled for several minutes about subjects that may only be vaguely related to the hearing at hand — all while he wears his dark glasses and cocks his head sideways to look at them from another angle.

Judicial nominees may spend hours or even days trying to justify their qualifications and experience and occasionally Hee fixates on the smallest of details using them to destroy the candidacy of a nominee he doesn’t see fit for duty. To his fellow senators, Hee can be cordial or threatening, depending upon the minute and his mood.

This year, it was the media — not a particular person or judicial candidate — who was the focus of his ire. This followed an unflattering and brief story in a Republican blog during the 2012 election that used no sources when accusing Hee of misdeeds clearly in an attempt to influence voters in the November election.

Hee won re-election and never sued the blog owner or spoke publicly about the accusations to confirm or deny them.

But when he was on the verge of considering whether to renew Hawaii’s journalism shield law, considered one of the best in the nation because it gives protections to traditional, online and non-traditional journalists, the disparaging blog entry appeared to raise his ire. Hee took his revenge out on all “so-called journalists,” saying they are “reckless” and “inaccurate” and have been afforded too much protection under the current law that expires in June.

Jeff Portnoy, media attorney

Jeff Portnoy, media attorney

Throughout the session, Hee kept his fellow Senate Judiciary Committee members in the dark about details of new bill drafts and told them to vote without seeing the drafts. The media also was kept from viewing the drafts even after the drafts had been voted on.

“This is a statute that benefits a limited group of people and also the public — but it is for journalists — and to not allow or permit the journalists to participate in the process is outrageous,” said Jeff Portnoy, a media attorney representing the Hawaii Shield Bill Coalition made up of 22 news outlets. “We were given zero input, the hearing was a joke, it was intimidating. And so subsequent to that, we sent communication to various legislators telling them it was unacceptable.”

The bill, as Hee wrote it, defined who a journalist is and what a media publication is, and did so without any consideration for 21st century journalism and without any input from journalists, said University of Hawaii journalism professor and former daily newspaper columnist Gerald Kato.

“There was a reason James Madison, in writing the First Amendment, said that government should keep its hands off the press. There is a great temptation, as there is here, to define who or what constitutes journalism to the exclusion of others. Lawmakers sometimes can’t resist the opportunity to say you’re a journalist because you own a printing press and you over there aren’t because you don’t. By doing that, they can define who is ‘legitimate’ and who is ‘not’ — who is ‘responsible’ and who is ‘reckless.’  It is a slippery slope to trying to control the message by controlling the messenger,” said Kato, who helped lobby for the bill five years ago and its extension this year.

Hee claimed to have changed the bill because of input from the American Civil Liberties Union, the State Attorney General’s office, and the Judicial Committee on Evidence, but his claims were rebutted.

Classic Hee: Sen. Clayton Hee sits behind Sen. Will Espero on the Senate floor with dark glasses on and his head cocked sideways

Classic Hee: Sen. Clayton Hee sits behind Sen. Will Espero on the Senate floor with dark glasses on and his head cocked sideways

The ACLU did meet with Hee on the journalists’ behalf, but disowned the Senate draft that emerged.

Portnoy also disputed Hee’s claims.

“What is critical, and is deceitful, in preamble of that (Senate) bill, it states that the changes they had made were at the request of the Judiciary Committee on evidence. That is an absolute falsehood because the Senate version, which passed the Senate (Tuesday), removed from the statutes non-traditional journalists and redefined who is a journalist and who isn’t. The Judiciary Committee never suggested that was one of the provisions the Legislature might want to look at.”

The House, which had made minimal changes to the current law before sending it to the Senate chairman for his consideration, agreed with the media to reissue an amendment on Tuesday that changed nothing in the current bill except the sunset provision, which it extended for two years. That passed unanimously in the House. The Senate was aware of the amendment and so was the media after a news release was issued.

Senate Democrats were being barraged by emails from several media organizations in the Hawaii Journalism Shield Bill Coalition asking them to adopt the House amended bill. Senators met three times in caucus on Tuesday to battle the issue in secret, emerging with no resolution.

“A (Senate) chair obviously ‘out to get the media’ scuttled the House version and came up with a version that made the law, if it passed, not one of the best in the country but worthless — virtually one of the worst. It deleted all of the protection for anyone who does not work for pay for a paid printed or broadcast media. … all of the 21st century media, and it took out any privilege for unpublished information, which is critical,” Portnoy said.


Stirling Morita, president of SPJ Hawaii Chapter

After a barrage of emails to House and Senate conferees, the unpublished information provision was reinserted, but the bill as proposed by the House and Senate conferees still eliminated all protection for non-traditional journalists.

Portnoy said he gives the House “tremendous credit for its guts and courage” because they were not willing to kill the bill without more analysis and input from everyone who should be involved.

Portnoy also thanked the nine Senators who voted against Hee’s Senate draft, but noted in the end, not one senator was willing to stand up to Hee and propose the House version. Portnoy said he was told there were not enough votes to pass the House version.

“We have spent so much time this year trying to bring rationality to the discussion but when the Senate judiciary chair holds up Dewey defeats Truman (headline from 1948) as an example of how journalism is, you know that you don’t have a chance with someone who does not understand the shield law has nothing to do with truth of falsity,” Portnoy said.

Portnoy said the shield law did not protect the journalist from “bad journalism” or defamation laws. What it did was protect the journalist who gets important information from people who did not want their identities disclosed.

“There are a number of cases in Hawaii that people do not even know about that would not have come out without the shield law,” Portnoy said, noting the experiences of his own local media clients.


Hawaii Sen. Sam Slom

“There are two very significant stories that might not have been published in this state without the shield law. One series of stories deals with Jimmy Pflueger and the breach of his Kauai dam, and another series of the stories on the Big Island elections. Attempts were made to try to get confidential sources and records, and in both cases, we were able to convince the lawyers attempting to get the information that the shield bill protected that information.”

Hee has attacked journalists and Portnoy in committee and from the Senate floor and referred to some of Portnoy’s comments as “lies.”

The struggle to keep the journalism shield bill intact has attracted the attention and advocacy from the Reporters Committee for Freedom of the Press, the ACLU, the Hawaii Community-Media Council and the Society of Professional Journalists national and local chapters. Stirling Morita, the local SPJ president, along with Kato and Portnoy, took the lead on pushing for the bill’s extension.

Senate Minority Leader Sam Slom told journalists on Wednesday that “anything can happen” until the gavel falls ending the 2013 legislative session on Thursday if the Senate cooperated with the House, but that is not likely.

“Three weeks ago, Sen. Hee reminded or cajoled everybody that it was the duty and the obligation of all senators on all Senate conference committees to represent only the Senate position and if they in fact did not represent the Senate position, he was going to lodge a complaint with the Senate president and Senate leadership,” said Slom, the Senate’s only Republican.

“Sen. Hee threw down the gauntlet at that time, which made it extremely difficult for my colleagues in the majority to stand up and be independent.”

Hawaii State Senate Majority Leader Brickwood Galuteria blamed the House leadership for the bill’s likely demise.

“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,” he said.

“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,” Galuteria said.

Contact Malia Zimmerman at [email protected]


Malia formerly served as staff reporter for Watchdog.org.