Hawaii Reporter fears retaliation

by Kevin Whitton

Malia Zimmerman is editor and reporter for HawaiiReporter.com, an online, right-leaning news Web site. She has been exhaustively reporting on the tragic Kaloko Dam break for more than a year. Since the accident at the Kaua'i dam, located on property owned by car dealer Jimmy Pflueger, she has become something of an authority on the incident and even served as a consultant to ABC's 20/20 for a segment on the tragedy. As a result of her efforts to uncover the cause of the dam break, Zimmerman is now involved in a legal struggle with Jimmy Pflueger. And the showdown has the potential to set judicial precedent in Hawai'i.
Pflueger's attorney, William McCorriston, has subpoenaed all of Zimmerman's documents, e-mails, notes, videos, pictures and other correspondence used in researching and writing her stories on Kaloko Dam. According to her lawyer Jeff Portnoy, she will turn over all documents she deems public record as well as a basic list of documents she considers confidential, but she won't reveal her sources.
Portnoy explains the reasoning for the subpoenas.
"This is a trick used by parties to make journalists an advocate or investigator for their party," he says. "This issue transcends Pflueger's case and goes to the heart of the First Amendment and freedom of press. Are we going to turn journalists into investigators for one side or the other? The answer is no. If journalists are not protected, then the loser is the public. People will stop talking to reporters."
Zimmerman fears that if her sources are disclosed, Pflueger will legally retaliate against them-whistleblowers could lose confidence about coming out and remaining protected. To prevent that, Zimmerman may assert that her records are privileged and confidential, just as attorneys or doctors need not divulge confidential information from clients.
Thirty-one states have journalistic "shield laws" (but not in Hawai'i), and there is no federal shield law. Zimmerman will rely on case law: legal precedents set by other court decisions. A 1961 Hawaii Supreme Court ruling acknowledged that while journalistic privilege existed, it had to be weighed against other issues, such as the importance of the journalist's documents to the case.
The Zimmerman case may also hinge on a second issue: what, exactly, is a journalist?
Journalists aren't licensed like doctors, lawyers or hairdressers, so the legal definition of a journalist is much more vague. McCorriston insists that Zimmerman is not a reporter in the true sense because she runs an online news service. According to McCorriston, HawaiiReporter is a blog and Zimmerman is a blogger, not a journalist, and should have no shield law protection.
For the last 15 years, Zimmerman has been writing for various news magazines and newspapers-including the Pacific Business News, from which she resigned amid controversy.
"HawaiiReporter is not a blog," Zimmerman says. "We are an online daily newspaper that has been around for more than five years. We have reporters who go to press conferences, community meetings and events to cover them. We have advertisers, and we have our stories reprinted in several publications including the Wall Street Journal. While we do print all letters received, we don't let people post their own information."
If McCorriston files and wins a motion for Zimmerman to reveal her sources, she and Portnoy are prepared to appeal all the way to the Supreme Court.
"Anyone who believes in the right of a journalist to report without fear of becoming a witness needs to get behind this," says Portnoy. "What happens in this case will affect everyone."
Meanwhile, a new attempt is underway to pass a federal shield law for journalists. The Free Flow of Information Act of 2007, was introduced on May 2. The House version has been amended to extend journalistic privilege to bloggers as well. n
On the Web
Honolulu Star-Bulletin editorial on the Zimmerman case
starbulletin.com/2007/05/23/editorial/editorial01.html
The Free Flow of Information Act and bloggers
arstechnica.com/news.ars/post/20070507-new-bill-to-give-bloggers-same-shield-law-protection-as-journalists.html
Additional reporting by Alan D. McNarie

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