Hawaii First Amendment attorney Jeff Portnoy testifies on journalism shield legislation in 2008
Hawaii First Amendment attorney Jeff Portnoy testifies on journalism shield legislation in 2008

HONOLULU — Journalists should be worried, scared even.

“It is a terrible time to be a journalist,” First Amendment lawyer Jeff Portnoy told several dozen Hawaii journalists Friday, during a Society of Professional Journalists awards dinner here.

Portnoy was referring to the Obama administration’s secret subpoenas for journalists’ phone and Internet records, as well as the U.S. Department of Justice’s secret investigation intoAssociated Press and Fox News reporters “in the name of national security.”

Portnoy received a First Amendment award for his work in trying to prevent Hawaii’s five-year-old Journalism Shield law from expiring June 30. He and many others tried to preserve the law but failed because the Senate Judiciary Chair would not agree to the House version of the bill, which simply extended the current law two years.

The law helped protect sources and unpublished material from civil subpoenas and twice was used by “non-traditional” journalists in court and by attorneys who protected their journalism clients out of court, simply by citing it. The law was first passed in 2008, in part to help Hawaii Reporter after its journalists were subpoenaed in a civil case related to the breach of the Ka Loko Dam, which killed seven people and an unborn child March 14, 2006.

“This is the first time I received an award for failing,” Portnoy said.

 Senate Judiciary Chair Clayton Hee blamed the House for killing the measure, saying its leaders failed to follow the rules.

It’s a ridiculous accusation, said Portnoy.

“This was the handiwork of Clayton Hee,” said Portnoy, noting Hee has a “distrust of the media.” Hee, Portnoy said, has made many “untrue” statements about the shield law, the media and Portnoy himself — in committee and on the Senate floor.

“We go into the (Senate) Judiciary Committee and the chair is sitting there with his boots up on the table, and his sunglasses on, and you try to explain why the shield law should survive. We then find that he introduces an amendment and puts it up for a vote without any single member of the committee being allowed to see it. Then they pass it with not one member having any idea what is being said,” Portnoy said. “If you think watching sausage being made is something to be disturbed at, show up at the Legislature one day and see what goes on there — it is a travesty.”

Hee’s Senate version, which did pass, eliminated from protection bloggers, online journalists and non-traditional journalists.

“They are not entitled, according to Clayton Hee, to any protection because they are not ‘journalists.’ I don’t know what he thinks they are, but they are not journalists,” said Portnoy, who has represented online journals, including Hawaii Reporter, in court.

Portnoy pledged: “The battle is not over, we are just getting ready to reload.

“If you see what is happening now in America in the name of national security, it is a scary time to be a journalist. We don’t’ think about a lot of it here (in Hawaii). We have not faced subpoenas here for local journalists who have nuclear secrets or who may be emailing people in Kuwait, but it is a terrible time to be a journalist, and I use that term in the broadest possible sense.

“I don’t mean people who have a journalism degree, or work for a big newspaper or television station. I am talking about all of the people whose lives are dedicated to getting information out.”

Journalists who investigate fraud, waste and corruption are a “dying breed,” Portnoy said, but they are needed now more than ever.

He asked journalists “not to give up the fight.”

“You may some day have to decide whether your potential freedom is worth a story. But that is what keeps America great,” Portnoy said.

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