Friday, April 18, 2008


WE’RE KEEPING HIM FOR PROTECTION. Attorney General Mark Bennett (yes it’s Mark, not the equally-slimy, ingenuously-pompous, arch-villain, right-wing-nut Robert “Bob” Bennett, as we originally wrote yesterday) is at it again, trying to water down the proposed reporters’ shield law an updated version of which is currently still alive with a defective date at the legislature according to Honolulu Advertiser Capitol reporter Derrick DePledge’s blog today.

The bill isn’t perfect and contains some baffling provisions but Bennett has consistently sought to change language- reportedly to no avail as yet- that insures there is a “clear and convincing” standard to force disclosure along with a three prong test, including a “non-cumulative” provision to ban “fishing expeditions”.

Bennett would seem to favor a shield only when prosecutors want to grant it- making the bill useless.

According to DePledge Bennett also interestingly wants “an exception for when sources voluntarily consent to the disclosure of information”.

So how exactly does that work? If prosecutors know the source of the information has voluntarily consented to waive anonymity wouldn’t they know who the source is?...and be able to compel testimony?

What’s really going on appears to be that Bennett wants to insert a time bomb in the legislation in order to later claim that the reporter has to name sources and show that they aren’t willing to come forward, making a farce of the shield

The latest House-Senate conference draft also now applies to all felonies not just “homicides or class A felonies” as in the Senate draft and in perhaps the silliest provision yet applies to civil cases as well, reportedly to cover “defamation” circumstances.

Currently in libel and slander cases there is no protection from being sued just because you said “Joe is a convicted wife beater” if it’s untrue- even if you add “according to unnamed sources”.

Reporters and their megaphones are subject to the libel/slander laws whether they’re claiming someone else told them the allegedly libelous information or not. If it’s a single source, you’d better have it on tape-preferably said publicly. Whether the source is named or unnamed doesn’t matter.

Civil cases are exactly what a shield law is for. If you’re just writing on Facebook that your neighbor is having an affair with the lady across the street and she sues for divorce and wants to call you as a witness, well you never did any “reporting” in your life and already don’t qualify for the “reports shield” even though you “reported” it on you MySpace page.

Truth is always a defense for libel, although malice comes into play when deciding if public figures have been “defamed”. But even if the information defames a non-public figure the reporter is still responsible for it’s dissemination, which is the point at which something can becomes libelous in the first place.

All any provisions for civil cases can do is open the door to civil courts abusing the provision and compelling what should be shield-protected testimony..

But at least the bill is alive and protects bloggers and citizen-journalists that are engaged in reporting things. It protects the information reported by authorizing the reporter to withhold the source and use discretion in revealing anything they said that wasn’t published.

It’s very hard to get someone to put their name on a corruption or injustice complaint to a reporter. One in a hundred will let you put their name in the article. But 99 in a hundred of their stories turn out to be true.

All you have to do is abide by the reporter’s creed “I love my mother but I’m checkin’ out her story”

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