It’s only a matter of time until a reporter in Hawai’i is threatened with jail or jailed for refusing a judge’s demand to turn over unpublished notes or disclose a confidential source, attorney Jeff Portnoy told a meeting of the Honolulu Community-Media Council last week.

That prospect, and the chilling effect it would have on the ability of reporters to dig up and publish news critical of the government or powerful political interests, has prompted Portnoy to step forward as a leading proponent of a law shielding journalists from being forced to testify or disclose documents in most circumstances.

Thirty-two states have already passed so-called shield laws and Congress is currently considering federal legislation, and several Island legislators of both parties have said they will introduce bills in the upcoming 2008 legislative session. Hawai’i currently has the dubious distinction of being the only state in which the State Supreme Court has ruled that reporters have no right to any form of special treatment or protection against such forced disclosures.

High-profile clashes between prosecutors and reporters, such as the jailing of New York Times reporter Judith Miller for 85 days in 2005, are only the tip of the iceberg in what Portnoy said is a growing threat to the media’s ability to serve as a watchdog.

‘It’s not only the cases that make headlines, it’s also the run of the mill efforts to subpoena a reporter’s unpublished photographs, notes or testimony about sources,’ Portnoy said. ‘It happens regularly.’

Portnoy said he has personally intervened in about 50 cases in Hawai’i over the years in which reporters were threatened with subpoenas. Most recently, Portnoy represented Internet journalist Malia Zimmerman, co-founder of Hawai’i [Reporter.com], who was threatened with subpoenas by attorneys for James Pflueger, owner of Kaua’i’s Kaloko Dam, who were seeking sources of information Zimmerman uncovered in reporting on the disaster that took seven lives last year.

Most of these situations, including Zimmerman’s, have been resolved through a process of discussion, negotiation and compromise, but each has the potential to intimidate reporters and editors and lead to self-imposed restraints.

Journalists also fear they will be viewed by the public as agents of law enforcement if they are forced to disclose sources and give up their unpublished notes, and this will necessarily discourage whistleblowers from coming forward and will make it more difficult to gather and report the news.

‘Many of the biggest investigative stories of our age have been based in part on information shared with a reporter by someone who wanted to keep his or her identity a secret,’ Christine Tatum, immediate past president of the Society of Professional Journalists, writes on the organization’s web site. ‘Anonymous sources handed over the Pentagon Papers and unmasked the culprits behind Watergate and Enron. They have outed some of the nation’s worst corporate polluters. They have helped inform Americans’ debates about the Iraq War, the proliferation of nuclear weapons and global warming.’

Organizations such as SPJ have taken a strong stand in support of federal legislation now making its way through Congress. The Free Flow of Information Act passed the House by an overwhelming bipartisan vote and is pending in the U.S. Senate.

While virtually all media-related organizations have endorsed the federal proposal, there remain substantial disagreements on just who should be covered by the law’s protections.

As currently written, the proposed federal law would cover reporters, photographers, editors and even bloggers who ‘regularly’ gather or report the news ‘for a substantial portion of the person’s livelihood or for substantial financial gain.’ This definition excludes student journalists and a broad range of citizen journalists who do not make money and consider themselves opposed to and outside of the mainstream corporate media.

With an estimated 120,000 new blogs created each day worldwide, drawing some sort of line seems necessary.

‘How do we see that a reporters shield law also protects the new journalism, the citizen journalist, while not extending those privileges to anyone who sends an e-mail?’ asks Honolulu Community-Media Council chairman Chris Conybeare.

Despite the problem of definitions, Conybeare said his organization backs the proposed law. ‘We want to make it easier for people to disclose government wrongdoing,’ he said. ‘We see this as a way to shield whistleblowers, not simply to shield journalists.’

Larry Geller, author of the Disappeared News blog, points to the example of whistleblower protection laws which, while sometimes ineffective, protect people no matter what they do.

‘No matter what your profession, whether you’re a secretary or an engineer, you can seek protection as a whistleblower,’ Geller said, urging that shield law protections be similarly based on the kind of information to be protected rather than the professional status of the person involved.

For more information on the push for a shield law, check [spj.org]

For more by Ian Lind, visit [iLind.net].

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