ACLU declares First Amendment victory

Judge Susan Mollway granted a temporary restraining order against Hawaiʻi County last week in Kona “Panhandling” case.

Will Caron

Last week, United States District Court Judge Susan Oki Mollway upheld an American Civil Liberties Union (ACLU) of Hawai‘i position that holding signs that request monetary assistance on roadsides is a protected form of free speech under the First Amendment, just as politicians soliciting votes with signs by the roadside is protected.

Matthew Winter, of law firm Davis Levin Livingston (which represented plaintiff Justin Guy in the lawsuit), said:  “All people have a constitutional right to express their views publicly, whether those views are popular or not. This right of free speech applies with equal force to an unsheltered person asking for help as it does to a politician asking for votes. The government cannot suppress speech it does not like, and it is the ability to freely express oneself, which is the heart of our democracy. Today’s ruling is a victory for all residents of and visitors to Hawai‘i County, because it is a victory for the most fundamental of our civil liberties.”

Judge Mollway entered a temporary restraining order against Hawai‘i County, prohibiting Hawai‘i County officials from interfering with Guy’s right to hold signs by the roadside.

In ruling that Hawai‘i County Code § 14-75 violates free speech rights, Judge Mollway wrote, “it is unclear why public safety cannot be addressed with less restriction than section 14-75 imposes.” She further asserted that Guy “is likely to succeed on the merits of his challenge to section 14-75 of the Hawai‘i County Code.”

On June 3, 2014, Guy (pictured) held a sign saying “Homeless Please Help” while standing to the side of Kaiwi Street in Kailua-Kona. A Hawai‘i County Police Department officer told him that panhandling was illegal and ordered him to “leave the area.” The officer then cited Guy for violating Hawai‘i County Code §14-75, which prohibits solicitation for money in a wide range of public places in the County.

“The County of Hawai‘i should treat homeless people with dignity, and recognize that we have constitutional rights—including the right to free speech—just like everyone else.”

The panhandling ordinance had been of concern to the ACLU for some time prior to the case being filed. “For more than a year, we repeatedly tried to address these issues informally with the Hawai‘i County Office of Corporation Counsel,” said ACLU Senior Staff Attorney Daniel Gluck. “We never received a substantive response. We are pleased that Mr. Guy will be able to exercise his constitutional rights without fear of arrest, and we are going to continue to continue this work to ensure that everyone—regardless of economic status—is treated equally under the law.”

The Court set a further hearing in this case for January 21, 2015 to address the constitutionality of several county laws restricting solicitation.