Hawaii Should Look to Montana for Leadership on the Shield Law

While state lawmakers have been working to undermine journalism here in Hawaii by weakening legislation to enact a shield law to protect confidential sources, freedom of the press is getting support from a most unlikely place in the country.

Think about Montana and your mind's eye sees a state of scenic splendors and rough-hewn beauty that stretches from the Rocky Mountains to the Great Plains. You think of bison on the plain and fly fishing in the lakes and streams. You think of cattle ranchers and characters out of "Hell on Wheels;" tough and independent.

You think of all these things, but you don't usually think that Montana is the state that's going out of its way to protect journalists. But its Republican-controlled legislature did just that recently when it became the first state anywhere that mandates the media be given notice of third party subpoenas.

Montana already has a shield law that gives absolute privilege for protection of confidential sources. The new law strengthens the shield so that it now covers third-party records.

"While a few shield laws, like those of Connecticut, Maine, and California, explicitly protect journalists' third-party records with a qualified privilege - one that can be overcome under clear circumstances - Montana seems to be the first to extend an absolute privilege to these records," says Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press, in Washington, D.C. (quoted by the Pointer Institute).

Montana legislators have recognized the close relationship between a free press and a free society. This recognition seems to elude Hawaii legislators. During the 2015 legislative session, House Judiciary Chair Karl Rhoads took a bill that would have given strong "qualified" protection to the press and diluted those protections to the point that it would have taken away common law protections currently in place.

The most egregious changes proposed by Rhoads involve "unpublished information," or information gathered but not used in a news story. The law supported by the Hawaii Shield Law Coalition includes comprehensive protections for confidential and non-confidential information - protections essential for a strong shield law to work. But Rhoads, together with the Attorney General's Office, wants to severely limit those protections. In effect, Rhoads is embracing the Attorney General's position that if there's no confidential source involved, unpublished information--such as journalist notes or television news outtakes--should be disclosed under penalty of imprisonment or fine.

This is misguided and simply ignores the reality of newsgathering. It is a profound step backward from the hard-fought court cases won by the news media over the past 30 years. Here's what the U.S. Ninth Circuit Court of Appeals says about unpublished information:

We discren a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes and other unused information, even if non-confidential, becomes routine and casually, if not cavalierly compelled.

First Amendment Attorney Jeffery Portnoy describes unpublished information as the "lifeblood" of journalists. What Rhoads is proposing is intended to such the life out of enterprising journalists and does exactly the opposite of what the Montana legislature did.

"States can, and should pass laws protecting the press, especially in this era of technology," says Montana State Rep. Daniel Zolnikov.

Hawaii's shield law bill is currently in limbo in the Senate Judiciary Committee. Media Council Hawaii has taken the position that it should die there unless lawmakers can agree that a strong shield law that protects the right to know should be enacted. Hawaii can, and should, take its lead from Montana.