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of Hawaii 2008 (Act 210), established a limited news media privilege against the compelled disclosure of sources and unpublished information to a legislative, executive, or judicial officer or body, or to any other person who may compel testimony.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.
Showing posts with label Reporters' Shield law. Show all posts
Showing posts with label Reporters' Shield law. Show all posts
Thursday, September 1, 2011
Friday, April 22, 2011
INCOMING
INCOMING: It's that's time of year when all the hard work at the legislature pays off like a Vegas slot with three lemons.
But as the members of the firing squad within the conference committee system load their Uzis for next week's inevitable blood bath somehow some bills manage to hide under the sanguine slaughtered and make it to a vote in both chambers.
Of course those measure are usually half of what could have been done with some kind of red tape thrown in just to make sure nothing in done in perpetuity.
And so it goes with this year's reporters' shield legislation which, instead of making it permanent. "extends the limited news media privilege against the compelled disclosure of sources and unpublished information to 6/30/2013." for some idiotic judiciary study that was already done the first time the law passed with a 2011 sunset date.
The Hawai`i law also covers bloggers making a nasty battle over who is a journalist moot for those of us who do reporting along with commentary and analysis.
But it's real import has been in getting people to talk and being able to offer them the added protection of a law that protects us.
For decades we've given assurances to certain sources that we would never reveal their identities, especially when their safety or job security are involved. But that meant convincing them that we would go to jail to protect their identities.
After a few notable cases across the mainland in the last decade where a handful of reporters either cracked or put pressure on their sources to reveal themselves it made people think twice and forced us to abandon some investigative pieces for lack of corroborating or even primary information, despite the fact that we could sit in Kapa`a and smell a story from Kekaha.
With the shield law we have been able to tell those who would expose corruption and wrong doing that our freedom is no longer an issue.
The problem is that it only applies tothe state court system since there is no federal shield law which would have to make its way through congress where it has stalled year after year.
If you have a story to tell us give us a call (we're listed) or drop us an email (gotwindmills(at)gmail.com) and join us in giving thanks for another two years of peace of mind for whistleblowers around the state.
But as the members of the firing squad within the conference committee system load their Uzis for next week's inevitable blood bath somehow some bills manage to hide under the sanguine slaughtered and make it to a vote in both chambers.
Of course those measure are usually half of what could have been done with some kind of red tape thrown in just to make sure nothing in done in perpetuity.
And so it goes with this year's reporters' shield legislation which, instead of making it permanent. "extends the limited news media privilege against the compelled disclosure of sources and unpublished information to 6/30/2013." for some idiotic judiciary study that was already done the first time the law passed with a 2011 sunset date.
The Hawai`i law also covers bloggers making a nasty battle over who is a journalist moot for those of us who do reporting along with commentary and analysis.
But it's real import has been in getting people to talk and being able to offer them the added protection of a law that protects us.
For decades we've given assurances to certain sources that we would never reveal their identities, especially when their safety or job security are involved. But that meant convincing them that we would go to jail to protect their identities.
After a few notable cases across the mainland in the last decade where a handful of reporters either cracked or put pressure on their sources to reveal themselves it made people think twice and forced us to abandon some investigative pieces for lack of corroborating or even primary information, despite the fact that we could sit in Kapa`a and smell a story from Kekaha.
With the shield law we have been able to tell those who would expose corruption and wrong doing that our freedom is no longer an issue.
The problem is that it only applies tothe state court system since there is no federal shield law which would have to make its way through congress where it has stalled year after year.
If you have a story to tell us give us a call (we're listed) or drop us an email (gotwindmills(at)gmail.com) and join us in giving thanks for another two years of peace of mind for whistleblowers around the state.
Wednesday, February 23, 2011
WEARING PROTECTION
WEARING PROTECTION: The reporters’ shield law passed by the legislature last year has quickly become an essential tool in the dissemination of information. It has allowed us to give the same confidentiality to sources this year that we have given in past decades only without the fear of having to go to jail for protecting the identities of whistleblowers.
Although we were never put in that situation it’s something that has happened to reporters across the country in states without a shield law. And there is no federal shield law for cases in federal courts.
The new law has allowed us to turn what used to be sometimes agonizing decisions into no-brainers, not just for we reporters but for sources as well who can now pass on information without fear of repercussions.
Of course we’d prefer to always name our sources but, especially on a small island like Kaua`i, we understand some people’s reluctance to come forward and attach their names. It does make our job a little bit more difficult since it often requires extra diligent double-checking for anonymously reported information, especially if there is no document involved.
But in their infinite lack of wisdom legislators put a “sunset date” of June 30, 2011 on the law meaning it must be passed one more time this year without any sunset date.
The good news is that House Bill 1376 passed out of the House Judiciary Committee yesterday with a unanimous vote and seems destined to move over to the Senate where it should have clear sailing.
But the bad news is that, as Civil Beat’s Sara Lin reported yesterday:
The final decision on any proposed extension of the law could ultimately lie with Gov. Neil Abercrombie. We've noted that he was the only Democrat in the U.S. House to vote against a bill that would have protected the confidentiality of reporters' sources in most federal court cases.
It’s hard to imagine his objections but it’s more important than ever that the bill pass both the house and senate with veto-proof majorities. Although no other hearings are currently scheduled it can’t hurt to send letters of support to all representatives (reps@capitol.hawaii.gov) and senators (sens@capitol.hawaii.gov).
Though the law has perceptibly helped us in our reporting over the last year, the assurance of a shield law is doubly important for sources who are now assured that a reporter will not have pick between spending weeks in jail or caving to prosecutors bent on digging out their sources, as has happened in some cases recently.
Help us help you and support HB 1376.
Although we were never put in that situation it’s something that has happened to reporters across the country in states without a shield law. And there is no federal shield law for cases in federal courts.
The new law has allowed us to turn what used to be sometimes agonizing decisions into no-brainers, not just for we reporters but for sources as well who can now pass on information without fear of repercussions.
Of course we’d prefer to always name our sources but, especially on a small island like Kaua`i, we understand some people’s reluctance to come forward and attach their names. It does make our job a little bit more difficult since it often requires extra diligent double-checking for anonymously reported information, especially if there is no document involved.
But in their infinite lack of wisdom legislators put a “sunset date” of June 30, 2011 on the law meaning it must be passed one more time this year without any sunset date.
The good news is that House Bill 1376 passed out of the House Judiciary Committee yesterday with a unanimous vote and seems destined to move over to the Senate where it should have clear sailing.
But the bad news is that, as Civil Beat’s Sara Lin reported yesterday:
The final decision on any proposed extension of the law could ultimately lie with Gov. Neil Abercrombie. We've noted that he was the only Democrat in the U.S. House to vote against a bill that would have protected the confidentiality of reporters' sources in most federal court cases.
It’s hard to imagine his objections but it’s more important than ever that the bill pass both the house and senate with veto-proof majorities. Although no other hearings are currently scheduled it can’t hurt to send letters of support to all representatives (reps@capitol.hawaii.gov) and senators (sens@capitol.hawaii.gov).
Though the law has perceptibly helped us in our reporting over the last year, the assurance of a shield law is doubly important for sources who are now assured that a reporter will not have pick between spending weeks in jail or caving to prosecutors bent on digging out their sources, as has happened in some cases recently.
Help us help you and support HB 1376.
Monday, December 27, 2010
MY OH MY WHAT A WONDERFUL DAY
MY OH MY WHAT A WONDERFUL DAY: The oldest trick in the shyster book is the standard “cease and desist” letter.
So when Big Island blogger Damon Tucker emailed us over the weekend that he’d gotten one from Midland, Texas attorney Robert K. Whitt after he posted a story on December 8 quoting two co-owners of a “zip-line” company- replete with pictures of rusty cables- there saying that,
the (other) owner of The Umauma Experience (Cleo Carlile) installed substandard cable on the course and it started to fail…It has worn down from round to flat and then the tension broke the cable as it became too thin. I immediately closed down lines 1, 2, and 4. The owner will replace the cable that guests ride on, but has refused to replace the guy wires which hold the whole thing up, platforms etc.
We suggested that he
tell him to go f**k himself and take it up with the people who said it. All you did was quote them. These kinds of letters are bluffs. They don't want a lawsuit- all that would do is put the guy's quote in the mainstream media.
suggesting he send a reply to the effect that he would
"welcome a lawsuit where we can air the issue of the safety of your ziplines before the community and in the mainstream press."
The letter demanded that Damon essentially put the toothpaste back in the tube with retractions and deletions.
But while the mainstream press hasn’t picked up the story yet this morning journalist and blogger Ian Lind went to town on the story saying
Attorney Whitt also provided an official-looking “Certificate of Inspection” issued by “Zipline Canopy Creations” and signed by “Julianne Lester”, apparently certifying that the ziplines have recently passed a “safety inspection”.
According to state business registration records, Lester is the registered agent for Kauai-based Zipline Canopy Creations, which was registered to do business in August 2010, and the president of Just Live, Inc., a recreation company also based on Kauai.
Apparently safety of the unregulated zip line business is sort of like getting a “deal” at a car dealership with rotating salespersons playing the part “manager” for the others to give the illusion of a discount- in this case zipline companies signing “Certificates of Inspection" for each other.
Ian also noted that
(a) quick search yesterday left me with the impression that zipline engineering and safety are largely unregulated by the state or counties, beyond the need to get routine building permits, so the status of this “certificate of inspection” is seems questionable.
And it didn’t end there.
After Ian’s post Disappeared News’ Larry Geller picked up the ball and ran with it regarding how these ziplines
cry out for regulatory control. Anything with allegedly rusty cables that could be described by Wikipedia as a “death slide” ought to catch the interest of state or local government you’d think.
Larry also noted that
Damon and Ian have provided a public service by posting information on their findings. At least those who Google for information on ziplines in Hawaii will possibly hit one of the articles.
But more important than those who google “ziplines in Hawai`i” might be those who google “The Umauma Experience” or “Midland, Texas attorney Robert K. Whitt.”
Now they’ll get at least four “hits.”
With the advent of “bloggers” the question is whether, when they engage in the act of reporting, they are de facto journalists. While many of the more stogy practitioners may argue for all sorts of self-serving and exclusionary rules for what a journalist is or isn’t, there’s still “no license required. ”
In fact, after much debate our own Hawai`i state reporters’ “shield law” essentially defines a reporter by the act of reporting- something bloggers do every day whether, like Ian they consider themselves journalists or, like Damon and Larry, not.
In this case Damon simply reported on the situation, citing and naming his source. Whether or not “The Umauma Experience” is actually safe or not his report is true in that the story is that two co-owners are alleging they are not safe.
And in libel cases, truth is the ultimate defense.
But to compound the report, rather than try to show that his operation is safe, Carlile chose to try to put the Genie back into the bottle and squelch the information, leading people to believe that, despite the industry’s claims, safety may not be their primary concern.
Not only that but, should they proceed with the lawsuit it will the become open season for the corporate press whose lawyers normally have their hair on fire over reporting anything of this nature unless and until a suit is filed.
The two-fold lesson here is that 1) the best way to make sure that information you wish would just “go away” gets out to a wider audience than the original report could is to try to squelch it and 2) if you file a lawsuit, even more people will know of the claim and even of you win, all people will remember is the allegation.
The other lesson may be that, even if you’re from Texas, don’t mess with Hawai`i bloggers.
So when Big Island blogger Damon Tucker emailed us over the weekend that he’d gotten one from Midland, Texas attorney Robert K. Whitt after he posted a story on December 8 quoting two co-owners of a “zip-line” company- replete with pictures of rusty cables- there saying that,
the (other) owner of The Umauma Experience (Cleo Carlile) installed substandard cable on the course and it started to fail…It has worn down from round to flat and then the tension broke the cable as it became too thin. I immediately closed down lines 1, 2, and 4. The owner will replace the cable that guests ride on, but has refused to replace the guy wires which hold the whole thing up, platforms etc.
We suggested that he
tell him to go f**k himself and take it up with the people who said it. All you did was quote them. These kinds of letters are bluffs. They don't want a lawsuit- all that would do is put the guy's quote in the mainstream media.
suggesting he send a reply to the effect that he would
"welcome a lawsuit where we can air the issue of the safety of your ziplines before the community and in the mainstream press."
The letter demanded that Damon essentially put the toothpaste back in the tube with retractions and deletions.
But while the mainstream press hasn’t picked up the story yet this morning journalist and blogger Ian Lind went to town on the story saying
Attorney Whitt also provided an official-looking “Certificate of Inspection” issued by “Zipline Canopy Creations” and signed by “Julianne Lester”, apparently certifying that the ziplines have recently passed a “safety inspection”.
According to state business registration records, Lester is the registered agent for Kauai-based Zipline Canopy Creations, which was registered to do business in August 2010, and the president of Just Live, Inc., a recreation company also based on Kauai.
Apparently safety of the unregulated zip line business is sort of like getting a “deal” at a car dealership with rotating salespersons playing the part “manager” for the others to give the illusion of a discount- in this case zipline companies signing “Certificates of Inspection" for each other.
Ian also noted that
(a) quick search yesterday left me with the impression that zipline engineering and safety are largely unregulated by the state or counties, beyond the need to get routine building permits, so the status of this “certificate of inspection” is seems questionable.
And it didn’t end there.
After Ian’s post Disappeared News’ Larry Geller picked up the ball and ran with it regarding how these ziplines
cry out for regulatory control. Anything with allegedly rusty cables that could be described by Wikipedia as a “death slide” ought to catch the interest of state or local government you’d think.
Larry also noted that
Damon and Ian have provided a public service by posting information on their findings. At least those who Google for information on ziplines in Hawaii will possibly hit one of the articles.
But more important than those who google “ziplines in Hawai`i” might be those who google “The Umauma Experience” or “Midland, Texas attorney Robert K. Whitt.”
Now they’ll get at least four “hits.”
With the advent of “bloggers” the question is whether, when they engage in the act of reporting, they are de facto journalists. While many of the more stogy practitioners may argue for all sorts of self-serving and exclusionary rules for what a journalist is or isn’t, there’s still “no license required. ”
In fact, after much debate our own Hawai`i state reporters’ “shield law” essentially defines a reporter by the act of reporting- something bloggers do every day whether, like Ian they consider themselves journalists or, like Damon and Larry, not.
In this case Damon simply reported on the situation, citing and naming his source. Whether or not “The Umauma Experience” is actually safe or not his report is true in that the story is that two co-owners are alleging they are not safe.
And in libel cases, truth is the ultimate defense.
But to compound the report, rather than try to show that his operation is safe, Carlile chose to try to put the Genie back into the bottle and squelch the information, leading people to believe that, despite the industry’s claims, safety may not be their primary concern.
Not only that but, should they proceed with the lawsuit it will the become open season for the corporate press whose lawyers normally have their hair on fire over reporting anything of this nature unless and until a suit is filed.
The two-fold lesson here is that 1) the best way to make sure that information you wish would just “go away” gets out to a wider audience than the original report could is to try to squelch it and 2) if you file a lawsuit, even more people will know of the claim and even of you win, all people will remember is the allegation.
The other lesson may be that, even if you’re from Texas, don’t mess with Hawai`i bloggers.
Friday, December 26, 2008
TRACKING TROUBLE
TRACKING TROUBLE: Although Kaua`i is called the separate kingdom each island has a different character and culture all its own.
And with the explosion of blogging nowhere is there a more diverse community of news and political bloggers than the Big Island.
And whether they are reporters who blog or bloggers who report, that can lead to trouble for the local power structure, as self described blogger-who-reports Damon Tucker found out when he went to check out possible violations of the Americans With Disabilities Act (ADA) at the Pahoa post office the day before X-mas.
As he took pictures of trash blocking the handicapped parking area and the hard-to-access, possibly non-compliant ramp all hell broke loose when an ever vigilant local postal employee took it upon himself to dub poor Damon a terrorist rather than allow him to make trouble for them over their handicapped set-up..
Here’s how Tucker described what happened next:
I was on my way out to my car, when this guy comes running up to me…
“Brah… what you doing?” He says
“Taking Pictures of the Post Office” I say
“Brah… This one Federal Building… that’s against the Law… Stick around… I’m calling the cops!”
The guy goes in and calls the cops on me. I’m thinking how friggin ridiculous…but ok… let’s see what the cops say.
So I stick around and as the cops arriving, I take a picture of them arriving.
Lady cop: “What you taking a picture of me for… that’s harassment you know?”
I’m like what? Since when is taking a picture of a Police officer or a building considered Harassment…
Officer… I’ve asked you not to take my picture and you took it…
.
I’m like… I took the picture before you even got out of your car and said a word…
Officer…”ERASE THAT PICTURE NOW!”
So I show the lady officer (J. Lee) the picture that I took of her and then showed her that I deleted it… Just to appease her.
I then ask if she would like to see any of the pictures of the Post Office… she refuses.
Then she asks Postal Guy if they want to press Trespassing charges against me… Post Office guy says no… that’s ok… just don’t ever take pictures here again.
So my question to anyone and everyone… Is there anything illegal about taking pictures of a Post Office?
Who was Harassed? The Post Office… or Me?
Since when did taking pictures of outside of buildings and/or police officers become “harassment?”
Sheesh… to think I was only there to drop off a package… Is it my fault I always carry my camera?
Heck… Tiffany… You better erase those pictures you took inside of the Post Office for gods sake before the Goonsquad comes after you!
Just kidding.
I can’t believe this Post Office. Maybe it is time to file a federal ADA Suit against them
But although Damon might have left it there others were perhaps more outraged, especially other bloggers and journalists.
And when long time reporter-who-blogs Honolulu (or more precisely Ka`a`awa) Ian Lind picked up the story, Tucker was apparently inundated with emails prodding into filing a complaint.
But like on Kaua`i it’s not very apparent how to do that on the Big Island. If you go to the Hawai`i Police Department’s (HPD) web site, despite their apparent embracing of “Community Policing” there is no where to tell you where to file complaints regarding officer misconduct.
A search of the site however does produce, if not a description of the process at least a form to fill out to file an official complaint with the Hawaii Police Commissions
The form says:
The Police Commission investigates complaints of misconduct against officers or employees of the police department while on duty or acting under the color of authority. The complaint must be received in the commission’s office within 60 days of the incident. A request for an exception to the 60-day rule must be in writing with an explanation for the delay.
While he apparently hasn’t filed a complaint- which must be signed and notarized according to the form, Tucker has written us with a little more detail in an email today.
He was apparently taking the picture in a public place and had even asked and gotten permission from one post office employee to take one picture through an open door.
[Correction: Damon Tucker in fact was refused permission to take any pictures by the woman. We regret the mistake.
Clarification: Tucker's email said:
One of the post office ladies came out and was sorting mail and left the door open to the post office. I asked her if she would mind if I took a picture of the inside while the door was open, and she said no. I didn’t really think anything at this point and continued to my car. Then I took another picture of the Handicap stall and was about to take a picture of the employee parking lot which was by my car… when a gentlemen came scooting out and asked me what I was doing.
Tucker has clarified that he meant to communicate that she told him he did not have permission rather than meaning that she didn’t mind if he took a picture. ]
He says that when another employee came out he demanded to know why he was taking pictures.
Tucker wrote
“I told him I was taking pictures. He asked me what for. I told him that I liked to take Pictures. He then re-emphasized… why and what are you taking pictures for. I told him I have a blog and I’m reporting about the Post Office (just as I have been reporting about many businesses in Pahoa during the last week).”
The Post Office’s web site does have restrictions on “filming and still photography on postal service premises” saying
“(i)nformal snapshots from handheld cameras for personal use may be allowed at the discretion of the postmaster so long as there is no disruption to Postal Service operations and provided the pictures are taken from areas accessible to the public”.
Tucker was apparently neither disruptive nor taking pictures “on postal service premises” unless the parking lot is considered such.
Tucker actually waited for the officer to arrive perhaps thinking that a person knowledgeable about the law would set the postmaster straight that his discretion ends at the end of the premises and doesn’t extend into the public right-of way.
But never underestimate the ability of some authority figures to defend businesses from snoopy reporters or bloggers.
If the postmaster was out of line the HPD officer was apparently outright abusive in citing laws that don’t exist and exploitive of the power of her uniform
Ticker also expanded on his description of what happened after he “snapped” a picture of the officer, snapped seemingly being the operative phrase around the Pahoa PO that day.
After the officer’s claim of harassment and the erasure incident- i.e. the destruction of Tucker’s personal property- it apparently got even weirder.
I felt extremely intimidated and knowing that this was the day before Christmas and no time to be getting arrested for refusing to obey a police officer… I did as she asked...
She continued to belittle me and yell at me about me about taking pictures of her and the post office. I then asked her if she would like to see any of the pictures of the Post Office and she flat out refused to even look at any of those.
Apparently there was nothing Tucker was going to do to calm the officer down and he did what anyone is supposed to do when an officer abuses his or her authority- comply now and complain later.
But Tucker was apparently too open and honest about who he was and what he was doing because he volunteered more info which apparently infuriated the abusive officer even further
When I explained that I had a blog… she flew off the handle. She started yelling at me saying… “Your going to put my picture on your blog without my permission…etc…” at the top of her lungs. At which point I told her that I’m always putting people on my blog and that it was my right to do so.
Damn straight Damon (he said cheering him on from a safe distance).
She then let into me about how it was illegal for me to post her picture on my blog. I even made mention that I put pictures of all sorts of people on my blog including the Mayor himself. She got extremely pissed and said that… “Well the Mayor is a public figure!”
I didn’t want to continue on with her and I felt the easiest way to diffuse the situation was to just sit there and agree with her before she came up with some lame reason to try and arrest me. It was bad enough that she extorted me into deleting the picture… I didn’t want to go to jail on Christmas Eve.
The press deserves no special treatment outside of the performance of their “job” nor asks for it but bloggers who act as reporters are now covered by the new Hawai`i Reporter’s Shield Law which, says:
(Reporters) 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.
The fact that bloggers engaged in reporting are included indicates that constitutional freedom of the press extends to anyone acting in the role of the press.
The outrage over an earlier incident of police harassment of reporter/blogger Joan Conrow over her reporting has died down now but unless police allow citizen journalists to do their job as community watchdogs we’re all in for a long lonely slide to fascism as the government- especially though the constabulary- conspires with the corporate class join to keep us in the dark.
And with the explosion of blogging nowhere is there a more diverse community of news and political bloggers than the Big Island.
And whether they are reporters who blog or bloggers who report, that can lead to trouble for the local power structure, as self described blogger-who-reports Damon Tucker found out when he went to check out possible violations of the Americans With Disabilities Act (ADA) at the Pahoa post office the day before X-mas.
As he took pictures of trash blocking the handicapped parking area and the hard-to-access, possibly non-compliant ramp all hell broke loose when an ever vigilant local postal employee took it upon himself to dub poor Damon a terrorist rather than allow him to make trouble for them over their handicapped set-up..
Here’s how Tucker described what happened next:
I was on my way out to my car, when this guy comes running up to me…
“Brah… what you doing?” He says
“Taking Pictures of the Post Office” I say
“Brah… This one Federal Building… that’s against the Law… Stick around… I’m calling the cops!”
The guy goes in and calls the cops on me. I’m thinking how friggin ridiculous…but ok… let’s see what the cops say.
So I stick around and as the cops arriving, I take a picture of them arriving.
Lady cop: “What you taking a picture of me for… that’s harassment you know?”
I’m like what? Since when is taking a picture of a Police officer or a building considered Harassment…
Officer… I’ve asked you not to take my picture and you took it…
.
I’m like… I took the picture before you even got out of your car and said a word…
Officer…”ERASE THAT PICTURE NOW!”
So I show the lady officer (J. Lee) the picture that I took of her and then showed her that I deleted it… Just to appease her.
I then ask if she would like to see any of the pictures of the Post Office… she refuses.
Then she asks Postal Guy if they want to press Trespassing charges against me… Post Office guy says no… that’s ok… just don’t ever take pictures here again.
So my question to anyone and everyone… Is there anything illegal about taking pictures of a Post Office?
Who was Harassed? The Post Office… or Me?
Since when did taking pictures of outside of buildings and/or police officers become “harassment?”
Sheesh… to think I was only there to drop off a package… Is it my fault I always carry my camera?
Heck… Tiffany… You better erase those pictures you took inside of the Post Office for gods sake before the Goonsquad comes after you!
Just kidding.
I can’t believe this Post Office. Maybe it is time to file a federal ADA Suit against them
But although Damon might have left it there others were perhaps more outraged, especially other bloggers and journalists.
And when long time reporter-who-blogs Honolulu (or more precisely Ka`a`awa) Ian Lind picked up the story, Tucker was apparently inundated with emails prodding into filing a complaint.
But like on Kaua`i it’s not very apparent how to do that on the Big Island. If you go to the Hawai`i Police Department’s (HPD) web site, despite their apparent embracing of “Community Policing” there is no where to tell you where to file complaints regarding officer misconduct.
A search of the site however does produce, if not a description of the process at least a form to fill out to file an official complaint with the Hawaii Police Commissions
The form says:
The Police Commission investigates complaints of misconduct against officers or employees of the police department while on duty or acting under the color of authority. The complaint must be received in the commission’s office within 60 days of the incident. A request for an exception to the 60-day rule must be in writing with an explanation for the delay.
While he apparently hasn’t filed a complaint- which must be signed and notarized according to the form, Tucker has written us with a little more detail in an email today.
He was apparently taking the picture in a public place and had even asked and gotten permission from one post office employee to take one picture through an open door.
[Correction: Damon Tucker in fact was refused permission to take any pictures by the woman. We regret the mistake.
Clarification: Tucker's email said:
One of the post office ladies came out and was sorting mail and left the door open to the post office. I asked her if she would mind if I took a picture of the inside while the door was open, and she said no. I didn’t really think anything at this point and continued to my car. Then I took another picture of the Handicap stall and was about to take a picture of the employee parking lot which was by my car… when a gentlemen came scooting out and asked me what I was doing.
Tucker has clarified that he meant to communicate that she told him he did not have permission rather than meaning that she didn’t mind if he took a picture. ]
He says that when another employee came out he demanded to know why he was taking pictures.
Tucker wrote
“I told him I was taking pictures. He asked me what for. I told him that I liked to take Pictures. He then re-emphasized… why and what are you taking pictures for. I told him I have a blog and I’m reporting about the Post Office (just as I have been reporting about many businesses in Pahoa during the last week).”
The Post Office’s web site does have restrictions on “filming and still photography on postal service premises” saying
“(i)nformal snapshots from handheld cameras for personal use may be allowed at the discretion of the postmaster so long as there is no disruption to Postal Service operations and provided the pictures are taken from areas accessible to the public”.
Tucker was apparently neither disruptive nor taking pictures “on postal service premises” unless the parking lot is considered such.
Tucker actually waited for the officer to arrive perhaps thinking that a person knowledgeable about the law would set the postmaster straight that his discretion ends at the end of the premises and doesn’t extend into the public right-of way.
But never underestimate the ability of some authority figures to defend businesses from snoopy reporters or bloggers.
If the postmaster was out of line the HPD officer was apparently outright abusive in citing laws that don’t exist and exploitive of the power of her uniform
Ticker also expanded on his description of what happened after he “snapped” a picture of the officer, snapped seemingly being the operative phrase around the Pahoa PO that day.
After the officer’s claim of harassment and the erasure incident- i.e. the destruction of Tucker’s personal property- it apparently got even weirder.
I felt extremely intimidated and knowing that this was the day before Christmas and no time to be getting arrested for refusing to obey a police officer… I did as she asked...
She continued to belittle me and yell at me about me about taking pictures of her and the post office. I then asked her if she would like to see any of the pictures of the Post Office and she flat out refused to even look at any of those.
Apparently there was nothing Tucker was going to do to calm the officer down and he did what anyone is supposed to do when an officer abuses his or her authority- comply now and complain later.
But Tucker was apparently too open and honest about who he was and what he was doing because he volunteered more info which apparently infuriated the abusive officer even further
When I explained that I had a blog… she flew off the handle. She started yelling at me saying… “Your going to put my picture on your blog without my permission…etc…” at the top of her lungs. At which point I told her that I’m always putting people on my blog and that it was my right to do so.
Damn straight Damon (he said cheering him on from a safe distance).
She then let into me about how it was illegal for me to post her picture on my blog. I even made mention that I put pictures of all sorts of people on my blog including the Mayor himself. She got extremely pissed and said that… “Well the Mayor is a public figure!”
I didn’t want to continue on with her and I felt the easiest way to diffuse the situation was to just sit there and agree with her before she came up with some lame reason to try and arrest me. It was bad enough that she extorted me into deleting the picture… I didn’t want to go to jail on Christmas Eve.
The press deserves no special treatment outside of the performance of their “job” nor asks for it but bloggers who act as reporters are now covered by the new Hawai`i Reporter’s Shield Law which, says:
(Reporters) 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.
The fact that bloggers engaged in reporting are included indicates that constitutional freedom of the press extends to anyone acting in the role of the press.
The outrage over an earlier incident of police harassment of reporter/blogger Joan Conrow over her reporting has died down now but unless police allow citizen journalists to do their job as community watchdogs we’re all in for a long lonely slide to fascism as the government- especially though the constabulary- conspires with the corporate class join to keep us in the dark.
Thursday, September 11, 2008
INCIDENTALLY INHUMANE
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.
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.
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