Settlement in First Amendment case forces Hawaiʻi County legislative changes
The settlement in a houseless Hawaiʻi County man's free speech case requires the county make revisions to several ordinances now found to be unconstitutional.
On September 14, the American Civil Liberties Union of Hawaiʻi and the law firm of Davis Levin Livingston announced the settlement of a lawsuit that challenged Hawaiʻi County laws prohibiting individuals from holding signs by the side of the road asking for help.
As a result of the settlement agreement, the Hawaiʻi County Council amended seven different subsections of the Hawaiʻi County Code (Hawaiʻi County Code §§ 14-74, 14-75, 15-9, 15-20, 15-21, 15-35, and 15-37), including laws that had unconstitutionally restricted “solicitation” (a form of speech protected by the First Amendment).
“The right of free speech applies with equal force to an unsheltered person asking for help as it does to a politician asking for votes,” said Attorney Matthew Winter of Davis Levin Livingston. “The government cannot suppress speech it does not like—the ability to freely express oneself is the heart of our democracy. Today’s settlement is a victory for all residents of and visitors to Hawaiʻi County, because it is a victory for the most fundamental of our civil liberties.”
In late 2014, United States District Court Judge Susan Oki Mollway entered a temporary restraining order against the county prohibiting it from interfering with plaintiff Justin Guy’s right to hold a sign by the side of the road. In her ruling that Hawaiʻi County Code § 14-75 violated the right to free speech, Judge Mollway wrote, “[I]t is unclear why public safety cannot be addressed with less restriction than section 14-75 imposes.”
On June 3, 2014, Guy was cited by a Hawaiʻi County Police Department (HCPD) officer for holding up a sign saying “Homeless Please Help” while standing to the side of Kaiwi Street in Kailua-Kona. The officer cited Guy for violating Hawaiʻi County Code § 14-75, which prohibited solicitation for money in a wide range of public places within the county.
The criminal charges against Guy were dismissed, and the ACLU soon filed suit to protect the constitutionally guaranteed free speech rights of Guy and, through his case, all the people in Hawaiʻi County. As part of the settlement of the case, Hawaiʻi County repealed multiple code provisions that criminalized solicitation and begging, and will pay $80,000 in attorneys’ fees, costs and damages. The county also fixed several other code provisions dealing with free speech and protests, so that now:
Small groups (smaller than 75 people) no longer need a permit to hold free speech activities in county parks;
Larger groups (larger than 75 people) wishing to hold free speech activities in county parks on short notice (for example, in response to a breaking news story) may do so without having to obtain a permit 20 days in advance. Instead, the group can simply notify the county of the planned demonstration;
“Offensive” speech, by itself, is no longer a crime (unless the speech is “likely to provoke a violent response”—which is not protected by the First Amendment); and
Solicitation of support and donations is no longer a crime.
“The County of Hawaiʻi should treat homeless people with dignity, and recognize that we have constitutional rights—including the right to free speech—just like everyone else,” said Guy after the decision.
“This lawsuit and settlement are important because they show that the law must be applied equally to everyone,” said ACLU legal director Daniel Gluck. “When a politician or police officer can wave a sign on the road asking for the public’s support, but a poor person faces criminal charges for the exact same conduct, that is wrong. The constitution protects everyone equally, and the ACLU will continue to fight to ensure that everyone is treated equally under the law regardless of their economic status.”
