LESS FEAR, MORE LOATHING

LESS FEAR, MORE LOATHING: Though you'd never know it via statewide media, the biggest trial in years on the Big Island has not only the corporate Hawai`i Tribune Herald's attention but that of various news-blogs that have had blow by blow daily coverage by cannabis activist Matt Rifkin and others.

The two sides have rested in the trial of Rastafarian Rev. Nancy Harris of the Sacred Truth Mission on marijuana cultivation charges after Harris presented a defense based on her religious practice under the federal Religious Freedom Restoration Act.

But the trial took a turn yesterday that ought to concern not just journalists but everyone when Deputy Prosecutor Ricky Damerville subpoenaed Tiffany Hunt Edwards, a free lance journalist who hosts the Big Island Chronicle (BIC) "blog." and has reported for various Hawai`i Island publications including the Big Island Weekly (BIW).

Early yesterday Edwards wrote:

From newswoman to newsmaker — Deputy Prosecutor Ricky Damerville “rush” subpoenaed me to testify in the religious use of marijuana trial.

This is a first in my journalism career.

I’m to appear at Third Circuit Court this afternoon to testify in the trial of Nancy Harris who is accused of commercial promotion of marijuana and is using a religious marijuana defense.

At issue is my June 2009 coverage of the case, specifically a free-lance article I wrote for the Big Island Weekly.

Although the trial ended without Edwards testifying the subpoena itself appears to be a blatant violation of the Act 210, the Hawai`i State News Media Privilege law, commonly known as the reporters' "shield law."

As summed up in last year's legislative extension of the law:

Session Laws of Hawaii 2008 (Act 210), established a limited news media privilege against the compelled disclosure of sources and unpublished information to a legislative, executive, or judicial officer or body, or to any other person who may compel testimony.

What that means is that other than the actual article itself the provision of anything the reporter may have seen or heard, including facts recorded in notes, cannot be "compelled."

That type of wording has been interpreted to mean that reporters in jurisdictions that have such shield laws cannot be subpoenaed or "compelled to testify." The article speaks for itself.

Edwards, who herself has also been attending the trial and has written about it on her BIC web site, was not on the original list of witnesses. She told us that she had consulted with two attorneys before the subpoena was withdrawn but didn't say what she would have done had it not been canceled.

The point here is that the very issuance of a subpoena can only be seen as pure harassment on the part of Damerville, especially given that Rifkin's coverage at BIC has been supportive of Harris' defense as was Edwards 2009 BIW article.

While this incident may not be quite as egregious as the 2008 locked-door interrogation at the "cop shop" of journalist and blogger Joan Conrow by Kaua`i Police Department Deputy Chief Clayton Arinaga asking what she saw in covering the "Naue `Iwi" protests, it is equally as offensive to anyone who values a free press.

The law is there for a reason. Journalists should not be acting as volunteer police for many reasons. Not only would credibility- not to mention their safety- become an issue if people think reporters are simply the eyes and ears of the police, but in fact reporters are there to do a constitutionally protected job that requires them to occasionally grant anonymity to those sources who would never talk to reporters if they thought their identities were going to become public.

When police and prosecutors- people who are expected to know the law- ignore it, they can only be seen to be harassing and intimidating journalists causing them to have to think twice as to not just how but what they report.

Will Edwards file a complaint with the attorney general's office or the state bar? We certainly don't know yet but we certainly urge her to follow-up on this matter so as to make sure that it doesn't happen again.