UPDATED 1/11/2012 3:30 p.m.

A Hawaii state judiciary committee is recommending that the Hawaii Legislature make permanent the state’s shield law that protects journalists from forced disclosure of sources and notes.

That’s good news for those who support First Amendment rights. Hawaii’s 2008 shield law, known as Act 210, was to have expired last summer, but lawmakers in the 2011 session extended the sunset date until June 30, 2013.

But the Standing Committee on the Rules of Evidence, a judicial committee that includes judges and others, in a December 2011 report to the Legislature, also suggests that lawmakers “take another look” at sections of the law concerning bloggers, defamation and a journalist’s unpublished materials.

Jeff Portnoy, the state’s most prominent First Amendment attorney who has been a leading advocate of the shield law, said he was pleased with the committee’s recommendation to make the shield law permanent. But he is very concerned about other possible changes to the law.

Portnoy said he would be reluctant to revisit substantive provisions of the shield law, other than making it permanent.

“I think that is unwarranted for any number of reasons — not the least of which that all of the issues raised by the Standing Committee were raised and addressed three years ago when the bill was introduced and debated and ultimately passed,” he said.

In particular, Portnoy warned that the loss of protection of a journalist’s notes “would gut much of the protection provided to journalists.”

“That would be a very significant loss, a giant step backwards,” he said.

‘Vital’ Law

House Bill 1376 passed the 2011 Legislature with near unanimous support.

The Society of Professional Journalists Hawaii Chapter, the ACLU of Hawaii, Common Cause Hawaii, the League of Women Voters of Hawaii and the Media Council of Hawaii strongly supported the bill, calling it, as one SPJ member did, “a vital part of that information pipeline.”

But Senate Judiciary and Labor Chair Clayton Hee, on the recommendation of Judge Glenn Kim, chair of the Standing Committee, inserted the reporting requirements into the final version of the bill.

The bill, now called Act 113, required that the Standing Committee report back before the 2012 session with recommendations on the act.

The move upset proponents of the bill, including Portnoy, who questioned why the judicial branch didn’t raise its concerns in 2008.

Portnoy, who was consulted on the Standing Committee’s report, raised that very point again this week.

“But, more importantly, there isn’t an objection or suggestion that wasn’t throughly vetted between the proponents of the legislation, including — quite modestly — me, who drafted the initial version,” he said.

Portnoy said he and legislators, former Attorney General Mark Bennett and county prosecutors (including, for a little while, Peter Carlisle) spent “hours and hours fine-tuning a bill that was acceptable to all constituents who expressed any interest in participating.”

UPDATE

Reached Wednesday, Hee said he would consider the Standing Committee’s suggestions.¹

“I think that any time the judicial branch of government is making a request for us to make an evaluation on a statute, it is in the interest of the public and the Legislature to yield to the advice,” he said. “They are not making any decisions; they are just asking that we take a look at their recommendations. I think that is wholly reasonable and fair. It doesn’t change the law; it just just gives them an opportunity to comment.”

Hee said the Legislature would take a look at the judiciary’s recommendations “this session, definitely,” although he added that it was not a “high priority.”

Hee also said that, while he respected First Amendment rights, there are exceptions.

“The First Amendment does not give the right to yell ‘fire’ in a theater, or ‘bomb’ on an airplane,” he said. “Even the First Amendment has its limitations.”

‘Building Blocks’

In addition to “valuable input” from Portnoy, according to the report, the Standing Committee also received detailed memoranda from Addison Bowman, an emeritus law professor from the Big Island, and Deirdre Marie-Iha, a deputy attorney general.

But the committee’s suggestion that lawmakers revisit shield law provisions on defamation language, protections for bloggers and unpublished sources is based in part on information from by Bowman and Marie-Iha, both committee members.

Bowman researched case studies on journalists’ privilege, while Marie-Iha argued, among other things, that language in the law was vague when it came to applying it to bloggers and that the privilege could be abused.

Portnoy, however, described the provisions as “building blocks” that, if pulled away, would bring the building down.

He called the law’s limited protection for non-journalist bloggers, for example, an “exciting, quite imaginative” compromise worked out between the parties. And he said the law had only been litigated “once or twice” since its enactment “and there have been no significant issues raised about any of the substance of the provisions.”

Using another analogy, Portony said, “You already have a cake. It tastes good. There’s no reason to bake another one.”

However, it would be a good idea, he said, for the Legislature to eliminate the sunset date this year rather than waiting until 2013.

Two key figures could help make that happen: state Sen. Les Ihara, a good-government advocate who sits on Hee’s judiciary committee, and Blake Oshiro, the former House Majority Leader who is now Gov. Neil Abercrombie‘s deputy cheif of staff.

Oshiro co-authored the shield law and introduced the bill to extend the sunset date.