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Secret Sources?

State Rep. Blake Oshiro, (D), and Rep. Gene Ward, (R), will introduce bills this session that would shield journalists from having to reveal their sources in court. Are these bills a good idea?


Blake Oshiro
State representative

Although the news media play a crucial role in monitoring and holding government accountable, Hawaii law currently offers only limited protection to reporters and their confidential sources. It's imperative that we provide journalists with the tools they need to effectively investigate and report matters in the public's interest, in order to keep our government honest. Otherwise, we face the danger of government conducting its business behind closed doors, in dark and smoky rooms, where the light of truth and disclosure are dimmed.

The fear of retaliation is what stops people from coming forward with information. That is why we have a whistle-blowers' protection law—so employees can anonymously report on the potential wrongdoing of their employers. Similarly, the press needs to get sources to talk about certain subjects, in the interest of bringing the truth to the public.

Protection of confidential sources ensures that those with important information can bring it forth without fear of punishment. Journalists must still verify the facts, but often, the only way in which they learn of a newsworthy story is through tips from sources who may otherwise be reluctant to come forward.

My proposed bill would provide a privilege to journalists that allows them to protect the confidentiality of their sources. That means journalists would not be prosecuted or punished for failing to disclose their sources.

Some may argue that the benefits of a shield law are not enough to justify the possibility that it may hamper government or law-enforcement investigations, but we already have a multitude of relationships that are protected from disclosure in the courts, including spousal, attorney/client and doctor/patient communications. Thus, given the importance and benefit of maintaining a free press, I fully support adding the journalist/source relationship to that list of privileged communications. It would ensure that the freedom of the press afforded by the First Amendment of the Constitution still means something.

Jon Van Dyke
professor of law, University of Hawaii at Manoa

Being for a reporter shield law is like being for motherhood and apple pie. Obviously, we want to promote the dissemination of information and allow reporters to do good investigative journalism. But as always, the devil is in the details. I have three central concerns with the shield legislation that Reps. Oshiro and Ward have drafted.

The first one is the ambiguity about who is going to be protected under this law, and who isn't. Everyone is going to want to jump under the umbrella, and the bills seem to refer to people who have been employed by the mainstream media, or were formerly employed. Would that include bloggers? Citizens who send their photographs to a TV station? Everyone thinks there should be a line drawn between those who are protected and those who are not, but there is broad disagreement as to where that line should be.

Secondly, exceptions to the shield need to be more clearly defined. What about journalists who observe criminal activity firsthand? What about leaks involving classified information, or threats to national security? Trade secrets? The federal shield legislation currently being debated includes quite a few exceptions. It is important that any bill enacted include a provision that a prosecutor needs to exhaust all of his other sources before issuing a subpoena for a reporter's information.

And finally, the need for confidentiality is overblown. Most stories can be developed simply by using good journalistic investigative work. That's what we want to encourage, and although there may be the occasional situations when you need to get somebody to talk confidentially, those situations are the exception. At the end of the day, if a reporter is privy to information crucial to solving a crime, and the prosecutor can't get that information any other way, then I think most people would agree that solving the crime is the greater priority and the reporter's privilege needs to give way.

What do you think? Weigh in at letters_honmag@pacificbasin.net.

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Honolulu Magazine March 2018
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