First amendment victory forces Big Island legal changes

The American Civil Liberties Union of Hawaii Foundation and the law firm of Davis Levin Livingston, today, announced a settlement of a lawsuit that challenged Hawaii County laws prohibiting individuals from holding signs asking for help. As a result of the settlement agreement, the Hawaii County Council amended seven different subsections of the Hawaii County Code (Hawaii 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).

Attorney Matthew Winter of Davis Levin Livingston, said: “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. 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 Hawaii 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 Hawaii County prohibiting Hawaii County from interfering with Plaintiff Justin Guy’s right to hold a sign by the side of the road. In ruling that Hawaii County Code § 14-75 ran afoul of the right to free speech, Judge Mollway wrote that “it is unclear why public safety cannot be addressed with less restriction than section 14-75 imposes.”

On June 3, 2014, Mr. Guy held his sign saying “Homeless Please Help” while standing to the side of Kaiwi Street in Kailua-Kona. A Hawaii County Police Department (HCPD) officer cited Mr. Guy for violating Hawaii County Code § 14-75, which prohibited solicitation for money in a wide range of public places in the County. The criminal charges against Mr. Guy were eventually dismissed, and the lawsuit was brought to protect the constitutionally guaranteed free speech rights of people in Hawaii County. As part of the settlement of the case, Hawaii County repealed multiple code provisions that criminalized solicitation and begging, and will pay $80,000 in attorneys’ fees, costs and damages.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.).

- solicitation of support and donations is no longer a crime.

Plaintiff Justin Guy said, “The County of Hawaii should treat homeless people with dignity, and recognize that we have constitutional rights—including the right to free speech—just like everyone else.”

ACLU Legal Director Daniel Gluck said: “This lawsuit and settlement are important, because they show that the law must be applied equally to everyone. 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”