Hawaii’s media shield law upheld

Hawaii’s media shield law survived its first legal challenge today when a Kauai judge granted an order to protect an independent filmmaker’s unpublished video footage and personal observations from a subpoena.

“It’s a good day for journalists,” said Oahu attorney James Bickerton, who represented filmmaker Keoni Kealoha Alvarez in the proceedings.

Attorneys for Joseph Brescia, who is building a house atop Hawaiian burials on Kauai’s North Shore, had subpoenaed Alvarez’s materials as part of civil proceedings initiated against more than a dozen persons who have opposed the construction.

Brescia’s attorneys wanted Alvarez, who is making a documentary on Hawaiian burial practices for PBS, to answer questions in a deposition and turn over raw video footage he had compiled from attending meetings of the Kauai-Niihau Island Burial Council and interviewing numerous persons involved in the Naue issue.

In granting the motion for a protective order filed by Bickerton and the American Civil Liberties Union, Kauai Circuit Judge Kathleen Watanabe explained that the purpose of Act 210, Hawaii’s media shield law, “is to protect the compelled disclosure of unpublished information.”

Watanabe noted that Alvarez’s documentaries had been shown at film festivals and on public access television, he had won awards for his work, and he had received a grant to make the burial practices documentary.

“Mr. Alvarez is, in fact, a journalist and therefore he is subject to the protection of Act 210,” Watanabe said.

Bickerton applauded Watanabe’s ruling, especially her determination that Alvarez is a journalist. He had argued that the law was intended to protect all journalists, including those working independently.

“It’s always an interesting day when a new law is affirmed by the courts for the first time,” Bickerton said after the hearing. “It’s clear that the judge did her homework and had looked at the law and its history in detail, and so Mr. Alvarez is understandably pleased that the new law has withstood its first test and is providing protection to him and other journalists.

“Hawaii is fortunate to have a shield law,” he continued. “It will give journalists the ability to dig deeper into their subject and that benefits society as a whole. It creates a chilling effect on journalists if they think they will be dragged into a lawsuit.”

In a statement previously released by the ACLU, Alvarez concurred:

As a journalist, I am trying to be as pono as I can in producing this film. I have promised everyone complete confidentiality, and I have promised everyone that the film and the interviews will not be released publicly until everyone in it has had a chance to review, comment, or object. Material that doesn’t make it into the final published film is intended to remain confidential.

The documentary deals with Hawaiian belief systems, burial practices, and issues that many people consider to be kapu. If I’m forced to turn over these tapes we’ll never be able to do a project like this again—lots of really important Hawaiian cultural preservation work simply won’t happen because people will be too afraid to do it. The trust in the journalist will be destroyed.

Watanabe also rejected an objection filed by the state Attorney General’s office. Deputy Attorney General Randy Ishikawa had argued that if Alvarez’s film is released during the trial, it could hamper the ability of attorneys to conduct full discovery and question witnesses. The AG’s office wants to know who Alvarez interviewed, Ishikawa said, “so we could seek their consent to the release of that information.”

Bickerton argued that the objection amounted to “a fit of pique by the Attorney General,” who had testified against the shield law. He later said the AG’s objection “was misplaced. Their job is to enforce the law, not to try and wriggle out of it. It’s the public policy of the State of Hawaii to protect journalists.”