Are State Shield Laws a Double-Edged Sword?
Shield laws provide predictability, say media advocates. But some worry that championing such laws puts journalists in the same arena with those they cover.
Hawaii had the country’s youngest and most progressive state reporter shield law. Passed in 2008, it was function-based, protecting traditional, online and nontraditional journalists in the state from subpoenas ordering them to reveal confidential sources or turn over unused notes, audio recordings, video footage and the like.
The keyword here is “had.” On the first of this month, the law expired. An attempt to repeal the sunset clause in the shield law this year failed -- the very act of cracking it open to make that one friendly amendment inadvertently left the shield law open to opponents who proposed changes that would have gutted and, in some cases, reversed its provisions.
“If we were going to end up with a bad law, we realized we would be better off with no law and just going to court and fighting on the belief that there is a qualified privilege,” says Gerald Kato, an associate professor in the School of Communications at the University of Hawaii at Manoa.
The death of the state shield law is a disappointment for Kato, a former political reporter who was subpoenaed and threatened with jail time for refusing to reveal a source, in what he calls a “silly case” in 1984. He is widely regarded as the father of Hawaii’s shield law.
“Shield laws provide predictability, which we don’t have now,” says Kato. “But we want predictability that is in favor of the press, not predictability that works against the press.”
Uncertainty is what reigns in the other 32 states with shield laws. Each one addresses the dominant media at the time the law was written. Kato laments that “Hawaii loses a very good shield law in the sense that it dealt directly with 21st-century issues” in a media environment where you cannot tell a journalist by who their employer is or the means by which they reach their audience.
Today, the boogeyman is the bloggers, says Kato. “Five years ago, there were some unarticulated fears among legislators that bloggers would abuse [the Hawaiian law]. That’s why they threw in the sunset provision.”
Kato doesn’t think that just owning “a laptop makes you a journalist,” but he acknowledges that bloggers and other nontraditional journalists have helped fill the void left by the decline of statehouse reporting by conventional media outlets.
Even as champion of shield laws, Kato has long questioned the wisdom of getting into the arena with those you cover. “It points to the problems if not the danger of going to a legislative body and seeking some help for the press.”
So what about the First Amendment in all of this? For Kato, the U.S. Supreme Court’s 1972 ruling in Branzburg v. Hayes that denied testimonial privilege to reporters subpoenaed before a grand jury “puts a monkey wrench in the position that ultimately the First Amendment is your best protection.”
Trevor Timm, executive director of the Freedom of the Press Foundation, agrees. “It’s unclear whether the Supreme Court believes the First Amendment suffices,” he says. “And it’s clear [in the wake of leak investigations of AP and Fox News] the government doesn’t think it does.”
For his part, Timm says, “there’s never been a more important time to pass robust shield laws to protect journalists’ sources [because] virtually every corrupt, abusive or illegal act by government officials is first exposed by a leak.”
Editor’s note: Starting with this month’s column, Dispatch will now focus on the evolving relationship between the media, government and the public.