The state Legislature and Gov. Linda Lingle created important public policy this session by passing Hawai'i's first shield law and, in so doing, helped strengthen protections for reporters and bloggers who rely on confidential sources for information.

Hawai'i was one of only 15 states that had no journalist-source privilege and the fear among us in the news media was that somehow a local journalist, relying on confidential information, would be compelled by the courts to reveal the source's identity or risk fines or jail time, as has happened nationally.

Under the new law, journalists (and bloggers and non-traditional journalists whose work is deemed in the public interest) have absolute protection in all civil cases, other than defamation cases, and all non-felony cases. For felony and defamation cases, attorneys must show the information is not available through alternative means, noncumulative and necessary to the investigation or defense, all tests that are not easily overcome.

Attorney Jeff Portnoy, representing a consortium of media outlets, including The Advertiser, plus bloggers and media advocates, worked for weeks with state Rep. Blake Oshiro and state Sen. Brian Taniguchi getting versions of the bill approved. Attorney General Mark Bennett opposed the original version of the bill, which he believed did not adequately protect the interest of those in law enforcement whose job it is to pursue criminal cases. With Oshiro's assistance, Bennett and Portnoy hammered out a deal on the final day to get the bill out of committee.

"There needs to be a balancing when the reporter's interest conflicts with the public safety, but I believe the soon-to-be new law appropriately strikes that balance," Bennett said.

Without Bennett's willingness to compromise, we wouldn't have a new law. And Portnoy's relentless pro-bono work on the measure, including his skill in getting competing news organizations and bloggers to come to an agreement, was extraordinary. Special thanks also go to UH professor Gerald Kato, who helped draft various revisions of the bill and testified at several of the hearings, and Chris Conybeare, head of the Honolulu Media Council, who added invaluable input and pushed hard to get bloggers and non-traditional journalists included in the bill.

But everyone involved praised Oshiro's ability not only to solicit various opinions about the shield law and what had been done elsewhere, but to close the initial gulf between what the news media wanted and what prosecutors sought.

Oshiro explained that he used the Honolulu Media Council, the Society of Professional Journalists and the ACLU to help craft his thinking and to provide him background on shield law issues. As vice chair of the House Judiciary Committee, he has worked with Bennett on several other bills to find middle ground, and Oshiro knew there was good legislative support. It was also unlikely, he thought, that Lingle, a former journalist, would veto it. He then offered to Bennett a three-year sunset clause on the law, which the news media opposed but was willing to accept.

Like all the others who worked on the bill, Oshiro believed strongly in a shield law.

"It's imperative that we provide journalists with the tools they need to be able to effectively investigate and report matters in the public's interest in order to keep our government and businesses honest," Oshiro said. "If the First Amendment is to have any real meaning, the news media must be afforded protections to ensure that they continue to play a crucial role in monitoring and holding government and big business accountable."

We didn't get everything we wanted, but we got a good law that makes a free press even stronger.

Mark Platte is senior vice president/editor of The Honolulu Advertiser. Reach him at
mplatte@honoluluadvertiser.com or 525-8080 .