Thursday, September 11, 2008


INCIDENTALLY INHUMANE: The arrest and interrogation of journalist Joan Conrow which she detailed and we analyzed this week has spurred a slew of comments at her web site from various and sundry right-wing trolls as well as some sincere defender.

Most, in all disingenuity, pooh-pooh any allegations of police misconduct and especially the blatant violations of the new Reporters’ Shield Law passed by the Hawai`i legislature this year

And today even libertarian, property rights lawyer-blogger Charley Foster has declared:

There's quite a bit of search and seizure discussion in the 70-plus comments as well as an abortive run at the shield law.

Abortive? Sorry Charley, ‘fraid not.

It’s quite obvious that none of the gut-less anonymous posters nor the owner of the bridge they live under have read and don’t understand what the Hawai`i shield law protects against.

The Hawai`i Shield law reads:

A journalist or newscaster presently or previously employed by or otherwise professionally associated with any newspaper or magazine or any digital version thereof operated by the same organization, news agency, press association, wire service, or radio or television transmission station or network, shall not be required by a legislative, executive, or judicial officer or body, or any other authority having the power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:

and then it goes on to describe exactly the information Conrow was asked for- essentially information gathered while engaging in gathering news and reporting upon it.

When you take out the non-pertinent words it reads, in context:

A journalist ...shall not be required by.. any... authority having the power to compel the production of evidence, to disclose, by subpoena or otherwise:

Note it says “any authority” which undoubtedly includes police officers. And note the “compelling” of the “evidence” is not, as in many states, necessarily in the realm of only “judges” and “subpoenas” but can be “otherwise”. And note of course it doesn’t just cover court “testimony” but “production of evidence”

While merely calling and politely asking a reporter if they will share their newsgathering with police would be far from ”compelling” the reporter to produce what the police consider “evidence”, by all legal definitions the “seizure” of Conrow makes the incident one where a reasonable person would feel compelled to provide that ”evidence”.

When someone is brought into the station house- whether physically “brought in” or whether they came of their own volition when asked doesn’t really matter. For all intent and purpose- and technically according to an ex -KPD officer we spoke to as well as a prominent Kaua`i attorney- Conrow was under arrest whether she was charged or not.

The dictionary defines “compel” as “To make one yield or submit”. "Making” Conrow “yield or submit” to questioning was the whole intent of the interrogation.

When a police officer tells you to do something, you are usually compelled to do so.

The Fourth Amendment of the U.S. constitution bans unreasonable searches and seizures.

One of the most famous cases of Fourth Amendment law is the Warren Supreme Court case of Terry v Ohio. It hold that:

It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.

Some have made much of the fact that Conrow may not have asked to be released but that is irrelevant as the standard in Terry and subsequent decisions state only that a reasonable person must have felt they were free to leave.

When an officer tells a person to “stay there” that constitutes “seizure” of that person- and of course that requires probable cause which was totally absent in this case.

There is little doubt that Conrow’s rights as a reporter under the newly enacted shield law were violated.

While some states’ shield laws refer to only subpoenas or court orders the Hawai`i law- said to be one of if not the most progressive- applies to all authorities and covers all methods of compelling information.

And of course it covers bloggers who engage in traditional newsgathering, even though Conrow is and has been a working professional journalist for 30 years.

While the law is new in Hawai`i that’s certainly no excuse for the behavior of the three officers this case. PNN is still awaiting comment from the county as to the status of any investigation.


Got Facts? said...

It seems the various and sundry "right-wing trolls" have argued their points well and have the case-law on their side while the sincere defenders have little more than a well-practiced sense of indignation.

From the comments:

U.S. Supreme Court case Yarborough v. Alvarado. Investigating officer asks 17 year old youth to come to station house and answer some questions about a murder. Officer questions youth for two hours in small office behind closed door with only the two of them present. Youth confesses to involvement in the crime. Supreme Court rules there was no seizure, youth was there voluntarily, and youth's statements were admissible in court despite his having not been mirandized.

Oregon v. Mathiason. US Supreme Court. Officer asks burglary suspect to come to station house and answer some questions. Officer and suspect met alone behind closed doors in an office. officer told defendant he wanted to talk to him about a burglary, and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and falsely stated that defendant's fingerprints were found at the scene. The defendant sat for a few minutes and then said he had taken the property.

Supreme Court ruled defendant was not in custody but was instead there voluntarily.

Katy said...

I don't know enough about case law to credibly enter the fray on that level.

I feel there is an ethical question at play here, and it affects all of us, not just Joan.

Do we want to feel collectively secure that our journalists - whose function is a real community asset -will not be intimidated away from covering controvesial subjects?

I think that Andy has made the point that sources and subjects need to be confident that the journalist is not an arm of law enforcement - a journalist's ability to report accurately depends on that.

Is this more valuable to society in the long run than shutting down effective journalism in order to pursue a few lawbreakers? I would venture to say that most people believe that freedom of the press is a higher value.

I would love to see this debate move beyond the eye-glazing debates of the this v. that case law and into the matter of community priorities and values. If you think catching all these awful Hawaiian trespassers is more important than journalistic freedom, then just say so,for god's sake.

a troll said...

First of all Katy, reporters can be guilty of trespass and if the police think Joan is guilty they have every right to arrest her, let alone ask her some questions.

Second, police can ask anyone questions they want to. Reporters can say no if they don't want to talk. And if they do want to cooperate and help police apprehend criminals, reporters can do that too. It's not unheard of.

Third, if we wanted society run by your notions of "community priorities and values" we would just submit ourselves to your rule. But we don't. We have three branches of government to determine the limits of what is allowable and what isn't. We elect a legislative branch to pass laws. We elect an executive branch to enforce laws. We have a judicial branch to explain the laws.

Katy said...

I have no interest at all in "ruling" anyone. I am a strong advocate of vigorous discussion and debate that expands the confines of conventional understanding. Therefore, I am here advocating - which is different than ruling - that the value of a free press being able to function at the very highest level of investigation outweighs the imperative to prosecute suspects. There are other ways that cops can get information- I think they should be "hands off" when it comes to press - because that serves the greater, long-term good.

If you are going to assert that our ethics should be defined by our laws, rather than the other way around, you are taking a bankrupt position.

a troll said...

The shield law does protect the value of the free press. So the law already does what you are advocating. You are just being extremist in insisting that the police may never ask reporters questions.