[ARTICLE I.--1791]

 

     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

Attorney General Opinions

 

  Statute which would include newspapers within definition of public utility and subject them to PUC jurisdiction would be violative of freedom of the press.  Att. Gen. Op. 74-11.

  Licensing of church-sponsored day care programs constitutional.  Att. Gen. Op. 85-25.

  Section 445-112(11), regulating political signs, was unconstitutional and unenforceable.  Att. Gen. Op. 96-4.

  Section 452-23(a)(4), (5), and (6) was overly broad and infringed upon commercial speech rights afforded by First Amendment.  Att. Gen. Op. 98-2.

  Section 11-204(b): violates First Amendment because it restricts persons or other entities from making contributions to noncandidate ballot measure committees.  Section 11-204(j):  statutory provision prohibits contributions based upon length of time that noncandidate committee has been registered; this durational requirement is unconstitutional because it imposes limitations on the right of association and the right of expression when contributions are made to noncandidate committees.  Att. Gen. Op. 98-5.

  Zelman v. Simmons-Harris, in which the U.S. Supreme Court held that an Ohio school voucher program did not violate the establishment clause, was inapposite in Hawaii; a publicly-funded Hawaii school voucher program would violate article X, §1 of the state constitution.  Att. Gen. Op. 03-1.

 

Law Journals and Reviews

 

  The Decision to Disobey:  A View of Symbolic Civil Disobedience.  7 HBJ 5.

  The Dissenting Cop.  9 HBJ 59.

  The Power of the Courts to Protect Journalists' Confidential Sources of Information:  An Examination of Proposed Shield Legislation.  11 HBJ 35.

  Cameras In Court-Focusing In On Constitutional Problems.  15 HBJ 83.

  Estes v. Kapiolani Women's and Children's Medical Center:  State Action and the Balance Between Free Speech and Private Property Rights in Hawaii.  13 UH L. Rev. 233.

  The Lum Court, Land Use, and the Environment:  A Survey of Hawai`i Case Law 1983 to 1991.  14 UH L. Rev. 119.

  The Protection of Individual Rights Under Hawai`i's Constitution.  14 UH L. Rev. 311.

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

  The Lum Court and the First Amendment.  14 UH L. Rev. 395.

  Burdick v. Takushi:  Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate.  14 UH L. Rev. 715.

  The Law and Politics of Dancing:  Barnes v. Glen Theatre and the Regulation of Striptease Dance.  14 UH L. Rev. 925.

  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah:  Reaffirming the Supreme Court's Religious Free Exercise Jurisdiction.  16 UH L. Rev. 401.

  Curing A Bad Reputation:  Reforming Defamation Law.  17 UH L. Rev. 113.

  Non-Profit Peddling in Waikiki:  To Permit or Not to Permit?  17 UH L. Rev. 539.

  Son of Simon & Schuster:  A "True Crime" Story of Motive, Opportunity and the First Amendment.  18 UH L. Rev. 201.

  Rosenberger v. Rector & Visitors of University of Virginia and the Equal Access Rights of Religious People.  18 UH L. Rev. 339.

  Confidentiality Breeds Contempt:  A First Amendment Challenge to Confidential Ethics Commission Proceedings of the City & County of Honolulu.  18 UH L. Rev. 797.

  The Inherent Hostility of Secular Public Education Toward Religion:  Why Parental Choice Best Serves the Core Values of the Religion Clauses.  19 UH L. Rev. 697.

  The Jurisprudence of Justice Scalia:  A Critical Appraisal.  22 UH L. Rev. 385.

  The Primacy of Political Actors in Accommodation of Religion.  22 UH L. Rev. 403.

  Justice Scalia and the Religion Clauses.  22 UH L. Rev. 449.

  Full and Equal Rights of Conscience.  22 UH L. Rev. 469.

  Transcript of the University of Hawai`i Law Review Symposium:  Justice Scalia and the Religion Clauses.  22 UH L. Rev. 501.

  Federalism and Federal Spending:  Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional.  23 UH L. Rev. 479.

  Legal Services Corporation v. Velazquez:  A Correct Application of the U.S. Supreme Court's First Amendment Limited Public Forum Analysis.  24 UH L. Rev. 331.

  Hawai`i's Response to Strategic Litigation Against Public Participation and the Protection of Citizens' Right to Petition the Government.  24 UH L. Rev. 411.

  Revisiting San Francisco Arts & Athletics v. United States Olympic Committee:  Why It Is Time to Narrow Protection of the Word "Olympic".  24 UH L. Rev. 729.

  Child Pornography on the Internet:  The Effect of Section 230 of the Communications Decency Act of 1996 on Tort Recovery for Victims Against Internet Service Providers.  24 UH L. Rev. 763.

  Evolution-Creationism Debate:  Evaluating the Constitutionality of Teaching Intelligent Design in Public School Classrooms.  25 UH L. Rev. 9.

  Preserving the Religious Freedom and Autonomy of Religious Institutions After Equal Employment Opportunity Commission v. Kamehameha Schools/Bishop Estate.  26 UH L. Rev. 203.

  Emergency Contraception in Religious Hospitals:  The Struggle Between Religious Freedom and Personal Autonomy.  27 UH L. Rev. 65.

  Your Body, Your Choice:  How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment.  27 UH L. Rev. 201.

  Knievel v. ESPN:  Demonstrating the Need for a Common-Sense Subjective Standard for Meaning in Defamation Law.  28 UH L. Rev. 231.

  A Public Lecture by Anthony Lewis, The First Amendment in Perspective.  29 UH L. Rev. 13.

  Free Exercise and Hybrid Rights:  An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans.  29 UH L. Rev. 23.

  Compelled Expression of the Religiously Forbidden:  Pharmacists, "Duty to Fill" Statutes, and the Hybrid Rights Exception.  29 UH L. Rev. 97.

  Playing by the Rules of Intellectual Property:  Fantasy Baseball's Fight to Use Major League Baseball Players' Names and Statistics.  29 UH L. Rev. 301.

  Restricting Student Speech that Invades Others' Rights:  A Novel Interpretation of Student Speech Jurisprudence in Harper v. Poway Unified School District.  29 UH L. Rev. 479.

  An Analysis of Hawai`i's Tradition of "Local" Ethnic Humor.  30 UH L. Rev. 219.

  May Religious Worship be Excluded from a Limited Public Forum?  Commentary on the Ninth Circuit Court of Appeals Decision in Faith Center Church Evangelistic Ministries v. Glover.  31 UH L. Rev. 29.

  RLUIPA and the Individualized Assessment:  Special Use Permits and Variances Under Strict Congressional Scrutiny.  31 UH L. Rev. 257.

  Drunk, Driving, and Untouchable:  The Implications of State v. Heapy on Reasonable Suspicion in Hawai`i.  31 UH L. Rev. 607.

  State v. Spillner:  An Investigatory Traffic Stop Based on Unreasonable Suspicion.  31 UH L. Rev. 631.

  The Constitution and Inking:  How Anderson v. City of Hermosa Beach Expanded First Amendment Protection for the Tattoo Industry.  33 UH L. Rev. 417 (2010).

  Christian Legal Society v. Martinez:  In Hindsight.  34 UH L. Rev. 71 (2012).

  The New First Amendment:  Allowing Unlimited Corporate Election Speech Free from Response.  34 UH L. Rev. 263 (2012).

  Borrowing Valor:  A Comment on United States v. Alvarez and the Validity of the Stolen Valor Act of 2013.  36 UH L. Rev.  315 (2014).

  A Unified Framework to Adjudicate Corporate Constitutional Rights.  39 UH L. Rev. 115 (2016).

  Turning Homeowners into Outlaws:  How Anti-Home-Sharing Regulations Chip Away at the Foundation of an American Dream.  39 UH L. Rev. 395 (2017).

 

Case Notes

 

Generally.

  State's ban on write-in voting does not unreasonably infringe upon voters' constitutional rights.  504 U.S. 428.

  Military bases are at least one location in which First Amendment restrictions are permissible.  582 F.2d 1194.

  If government creates a public forum, even though under no duty to do so, its power to exclude expression is severely limited.  710 F.2d 1410.

  Recalled officials likely to succeed on claim that two-year ban on their election to office is unconstitutional.  775 F.2d 1393.

  Section 11-216(d)'s prohibition on complainant publicly disclosing that complaint was filed with campaign spending commission and on other disclosures by third parties unconstitutionally overbroad.  30 F.3d 1115.

  Prison officials entitled to 42 U.S.C. §1983 qualified immunity from inmate's claim of retaliatory punishment for exercising inmate's First Amendment rights where reasonable prison official would have believed that inmate's transfer from minimum to medium security facility was lawful, advancing legitimate penological goals.  55 F.3d 454.

  Where appellants claimed, inter alia, that restrictions imposed on organizations who chose to receive Legal Services Corporation funds were unconstitutional because they conditioned the receipt of a benefit, the grant of federal funds, on the relinquishment of the right to engage in protected activities, appellants' unconstitutional conditions argument was without merit because neither the congressional enactments nor the implementing regulations infringed on First Amendment rights.  145 F.3d 1017.

  Independent candidates for president denied access to State's ballot for the 2004 election appealed district court's holding that relevant provisions governing access do not violate the First and Fourteenth Amendments or the equal protection clause; district court's holding that the presidential ballot access scheme is constitutional, affirmed.  620 F.3d 1214 (2010).

  Government cannot require an individual to relinquish First Amendment rights as a condition of employment.  437 F. Supp. 368.

  Joint efforts to influence officials in the exercise of their public duties are beyond scope of antitrust laws in that to prohibit such activity would impair right to petition government.  460 F. Supp. 1359.

  County ordinance which allows refusal to issue, suspension, or revocation of license to exhibit public shows on grounds of (1) presentation of obscene, indecent, or immoral show; or (2) past violation of certain pornography statutes is unconstitutional on its face.  488 F. Supp. 820.

  Service of process is an expressive act protected by the First Amendment.  823 F. Supp. 806.

  With the ability to control the separately incorporated and insular second organization, alternative channels existed for Legal Services Corporation-funded organizations to pursue their constitutionally protected activities; thus, the Legal Services Corporation regulations did not constitute an unconstitutional condition and thus, were not violative of plaintiffs' First Amendment rights.  981 F. Supp. 1288.

  State's motion for a preliminary injunction granted, where State sought a preliminary injunction to enjoin defendants from taking any further steps to implement termination agreement and close newspaper, and defendants claimed, among other things, that any injunctive relief would necessarily violate their First Amendment rights to refrain from speaking or publishing.  99 F. Supp. 2d 1241.

  Defendants' motion for partial summary judgment granted as to plaintiff's claim that defendants misappropriated and used plaintiff's name and likeness in an unfavorable publication without plaintiff's authorization; the published article, photographs, and liner notes were newsworthy and relevant.  528 F. Supp. 2d 1081.

  Ordinance prohibiting use of streets for soliciting sales does not abridge freedom of press or freedom of speech.  43 H. 71.

  "Loitering" statutes, effect of First Amendment, §265-52 distinguished.  49 H. 624, 632, 425 P.2d 1014.

  Narrowing of statute by common sense interpretation where no First Amendment rights involved.  49 H. 624, 634, 425 P.2d 1014.

  Obstructing use of university office constituted conduct outside First Amendment rights, and ex parte temporary restraining order was not constitutionally invalid.  52 H. 427, 478 P.2d 320.

  Exercise of First Amendment rights and the trespass statutes.  54 H. 450, 509 P.2d 1095.

  Obscenity is outside protection of First Amendment.  58 H. 440, 573 P.2d 945.

  Not violated by disqualification of recalled officials from running for vacancy created by recall.  68 H. 263, 711 P.2d 723.

  Section 842-2(3) does not implicate First Amendment concerns because it is neither directed at, nor does it regulate or proscribe First Amendment freedoms, i.e., membership in a political organization or certain beliefs held by an individual.  84 H. 211, 933 P.2d 48.

  Section 712-1200 does not proscribe constitutionally protected conduct and was not overbroad as applied to defendant's actual conduct; the language of the section also was sufficiently clear that defendant was not required to guess at its meaning, the statute gave defendant fair warning that defendant was prohibited from offering or agreeing to engage in sex for a fee.  107 H. 360 (App.), 113 P.3d 811.

  Given the apparent absence of a "countervailing state interest of overriding significance", family court's restrictions violated mother's right to free access to the courts where family court required mother, if she was represented by an attorney, to access the record in the case only through a licensed Hawaii attorney or other attorney admitted pro hac vice, or allowing mother, if she was representing herself pro se, to access the record only if she was accompanied by a family court staff person.  118 H. 293 (App.), 188 P.3d 807.

 

 

Establishment of religion.

  Statute declaring Good Friday as state holiday does not violate establishment clause.  932 F.2d 765.

  University policy of not funding student organizational activities intended to or actually promoting particular religious points of view, even if secular in context, constitutional if funding criteria evenly applied to all eligible groups seeking funding of nonsectarian events.  15 F.3d 922.

  Parole officer did not have qualified immunity.  First Amendment was violated where the parole officer allegedly required a parolee to attend a drug treatment program rooted in religious faith and then recommended revoking parole because the parolee refused to participate; pertinent establishment clause law was clearly established on this point such that a reasonable official would know that the official's conduct was illegal.  504 F.3d 705.

  Religious Land Use and Institutionalized Persons Act of 2000 does not violate the establishment clause in a land use context.  298 F. Supp. 2d 1010.

  Plaintiffs' motion for preliminary injunction denied as to their establishment clause claim, where they claimed, inter alia, that certain staff members at a secure juvenile correctional facility promoted religion, often discussing religious teachings and quoting from the Bible, and that the facility ratified the conduct of these staff members.  415 F. Supp. 2d 1129.

 

Freedom of association.

  Where political party did not develop evidence showing that the State's open primary system severely burdened its associational rights, the party's facial challenge failed; among other things, the party provided no evidence showing a "clear and present danger" that adherents of opposing parties determined the party's nominees.  833 F.3d 1119 (2016).

  Where plaintiff claimed provisions requiring an open primary were facially unconstitutional because allowing voters to associate anonymously with a political party violated a party's First Amendment right of free association:  (1) plaintiff's purely facial challenge to the open primary failed; and (2) the court could not assess whether plaintiff's associational rights were burdened without considering evidence as to the extent, if any, of that burden.  982 F. Supp. 2d 1166 (2013).

 

Freedom of press.

  Factors used to determine whether news reporter must reveal sources in libel action.  507 F. Supp. 880.

  Freedom of press guarantee is not sufficient in itself to protect reporter from being compelled to disclose confidential news source.  45 H. 317, 367 P.2d 472.

  Is not an absolute.  45 H. 317, 367 P.2d 472.

  In libel action by county supervisor against newspaper, plaintiff at trial must show knowledge of falsity or reckless disregard of the truth, but upon defendant's motion for summary judgment situation different.  49 H. 675, 427 P.2d 79.

  In libel action, newspaper publisher not entitled to have case withdrawn from the jury merely because the article is not clearly defamatory.  49 H. 675, 681-83, 427 P.2d 79.

  Libel action by public official against newspaper; summary judgment for defendant granted when.  50 H. 648, 448 P.2d 337.

  Defamation; concept of "public figure" discussed.  56 H. 522, 543 P.2d 1356.

  News media liable for negligent defamation of private person.  56 H. 522, 543 P.2d 1356.

  Right to freedom of press not denied by the closing of judicial proceedings to the public.  59 H. 224, 580 P.2d 49.

  Where plaintiff in defamation action failed to prove that newspaper had acted with actual malice when it erroneously published story naming plaintiff as the target of an investigation, summary judgment for newspaper properly granted.  89 H. 254, 971 P.2d 1089.

 

Freedom of religion.

  Compelling government interest in preventing trespass to military land outweighs defendant's free exercise of religion.  582 F.2d 1194.

  Inmates' motion for preliminary injunction regarding inmates' prayer objects denied, where inmates argued that the deprivation of the prayer objects violated inmates' rights to the free exercise of religion under the U.S. and state Constitutions.  One inmate failed to exhaust available administrative remedies as to the destruction of the prayer object, and even if the inmate had exhausted administrative remedies, the inmate had not established that the inmate was likely to suffer irreparable harm in the absence of a preliminary injunction.  The other inmate, among other things, was unlikely to prevail on the merits of the free exercise claim because the regulations and policies at issue were reasonably related to legitimate penalogical interest.  The regulations satisfied the less stringent valid, rational connection to a legitimate governmental interest factor, and the inmate had alternate means of exercising inmate's right to practice inmate's religion.  903 F. Supp. 2d 975 (2012).

  Material questions of fact precluded a determination as to whether defendant, an off-duty police officer on special assignment, was entitled to qualified immunity in a 42 U.S.C. §1983 action.  The court could not determine, as a matter of law, whether plaintiffs, evangelical Christians distributing gospel tracts, were directed to move by defendant because they presented a risk to pedestrian safety or because the Maui fair permit holders wanted plaintiffs removed.  98 F. Supp. 3d 1133 (2015).

  Where plaintiffs asserted that defendant police officer violated their rights of freedom of speech, assembly, and religious exercise:  (1) police officer, working on special duty assignment providing security at the Maui county fair, was acting under color of state law for purposes of 42 U.S.C. §1983; (2) regardless of whether the sidewalk area outside of the Kanaloa gate was technically encompassed by the third party defendants' permit, it remained a traditional public forum; and (3) material questions of fact existed as to whether plaintiffs' First Amendment activities actually impeded the purported government interest in protecting pedestrian safety and whether there were ample alternatives for plaintiffs' communication.  98 F. Supp. 3d 1133 (2015).

  Sex education films, shown to fifth and sixth grades, with excusal system which permitted parents to have their children excused from viewing the films did not violate the free exercise of religion clause.  52 H. 436, 478 P.2d 314.

  Not violated by requiring church-run school to make unemployment contributions on behalf of its lay teachers and staff.  68 H. 410, 718 P.2d 267.

  Geothermal plant does not regulate or burden religious beliefs nor does it inhibit religious speech.  69 H. 255, 740 P.2d 28.

  Under the First Amendment and article I, §4 of Hawai`i constitution, civil courts have no authority to resolve disputes that turn on matters of church doctrine, practice, polity, or administration or that cannot be decided without resolving underlying controversies over such matters.  When faced with such claims, civil courts must dismiss them.  77 H. 383, 885 P.2d 361.

  Not violated by director's failure to grant building height restriction zoning variance for temple hall where plaintiff Buddhist temple failed to demonstrate substantial burden on its free exercise of religion because of height restriction.  87 H. 217, 953 P.2d 1315.

  Trial court did not err in concluding that defendant failed to prove that §712-1249.5 unconstitutionally burdened the free exercise of defendant's religion where defendant failed to establish that the trial court clearly erred in finding that defendant did not demonstrate that defendant's religion required possession or cultivation of fifty or more marijuana plants.  108 H. 169, 118 P.3d 652.

  Under the circumstances of the case, the free exercise clause of the First Amendment was not a viable defense to prosecution under §712-1249; §712-1249 is a neutral law of general applicability to the extent it purports to prohibit, without exception, the possession of marijuana and any other substance defined as a "Schedule V substance" by chapter 329, it does not interfere with other constitutional rights, and it does not create a mechanism for governmental assessment of individual applicants for exemptions.  115 H. 396, 168 P.3d 526.

  Administrative rules pertaining to entrance into the Kaho‘olawe island reserve did not unconstitutionally burden defendants' right to practice their religion.  132 H. 36, 319 P.3d 1044 (2014).

  Statute prohibiting possession of marijuana did not burden defendant's free exercise of religion.  5 H. App. 411, 695 P.2d 336.

  Where church was not a hierarchical church, but a congregational church that made decisions by a vote of its members as set forth in its "petition for charter" of incorporation and by-laws, the church was governed by chapter 414D; thus, appellants should have been allowed to amend their complaint, had standing to contest their expulsion, and were not precluded from doing so by the ecclesiastical abstention doctrine; also, doctrine did not bar appellants' complaint to the extent it did not require resolution of controversies over church doctrine, law, or polity.  118 H. 165 (App.), 185 P.3d 913.

 

Freedom of speech.

  Does not prevent defendant's exclusion from military base after being barred.  472 U.S. 675.

  Section 291C-77(c), banning political signs on public sidewalk, denies freedom of speech.  516 F.2d 892.

  Section 11-216(d) unconstitutional to the extent that it prevents an individual from disclosing that the individual filed a complaint with campaign spending commission.  30 F.3d 1115.

  Defendants' statements implying attorney's poor client representation not defamatory where general and specific contexts in which statements were made did not imply assertion of an objective fact and statements were incapable of being proved true or false.  56 F.3d 1147.

  Plaintiffs' sales of T-shirts imprinted with philosophical and inspirational messages fell within ambit of First Amendment; peddling ordinance prohibiting sale of merchandise on city streets was content-neutral, narrowly tailored to serve substantial interests throughout Waikiki, and left ample alternative channels of communication.  76 F.3d 1009.

  Plaintiffs' free speech claim rejected, where plaintiffs argued that  Hawaii's policy of putting all questions on the same physical ballot, when combined with Hawai`i State AFL-CIO v. Yoshina's method for calculating a majority, "coerced" votes in violation of First Amendment.  140 F.3d 1218.

  District court judgment in favor of plaintiff affirmed, where defendants, state officials, contended, among other things, that there was insufficient evidence to support court's findings of retaliatory motives on the part of defendants.  283 F.3d 1070.

  Mt. Healthy mixed-motive analysis applies to First Amendment claims, regardless of whether the plaintiff uses direct or circumstantial evidence to prove there was a retaliatory motive behind the adverse employment action.  283 F.3d 1070.

  Ordinance requiring all publishers who wished to distribute their publications along sidewalks in the Waikiki special district to use one of two sets of newsracks, one reserved solely for publications that charge readers and one just for free publications, did not violate the First Amendment.  298 F.3d 1037.

  Ordinance prohibiting aerial advertising did not violate the First Amendment or the equal protection clause of the Fourteenth Amendment.  Honolulu's airspace was a nonpublic forum, and the ordinance was reasonable, viewpoint neutral, and rationally related to legitimate governmental interests.  455 F.3d 910.

  The constitutionality of department of land and natural resources' (DLNR) regulation of commercial weddings on the State's unencumbered beaches upheld in all respects but one; the only provisions that violate the First Amendment are the terms and conditions giving to the chairperson of the board of land and natural resources the authority to revoke an already issued permit "at any time and for any reason in [his or her] sole and absolute discretion", and giving to DLNR the authority to add terms and conditions to an already issued permit such "as it deems necessary or appropriate".  682 F.3d 789 (2012).

  Hawaii's government contractor contribution ban under §11-355 satisfies closely drawn scrutiny; it serves sufficiently important governmental interests by combating both actual and the appearance of quid pro quo corruption, and it is closely drawn because it targets direct contributions from contractors to officeholders and candidates, the contributions most closely linked to actual and perceived quid pro quo corruption.  The ban survives closely drawn scrutiny even as applied to plaintiff's proposed contributions to candidates who neither decide whether plaintiff receives contracts nor oversee plaintiff's contracts.  786 F.3d 1182 (2015).

  The disclaimer requirement under §11-391(a)(2) did not violate the First Amendment as applied to plaintiff's political advertisements.  786 F.3d 1182 (2015).

  The "noncandidate committee" definition and accompanying reporting and disclosure requirements were substantially related to Hawaii's important interests in informing the electorate, preventing corruption or its appearance, and avoiding the circumvention of valid campaign finance laws.  Because the burden of complying with the disclosure scheme was modest compared to the significance of the interests being served, the court upheld the noncandidate committee reporting and disclosure requirements, as applied to plaintiff, a for-profit corporation.  786 F.3d 1182 (2015).

  Defendant's decision to deny plaintiff's student teaching application did not violate plaintiff's First Amendment rights, where the decision was directly related to defined and established professional standards, was narrowly tailored to serve defendant's purpose of evaluating plaintiff's suitability for the teaching profession, and reflected reasonable professional judgment.  813 F.3d 850 (2015).

  Plaintiffs' interlocutory appeal dismissed as moot, where plaintiffs sought a preliminary injunction solely to prevent defendants from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiians.  Given the changed circumstances, the court could not provide any effective relief sought in the preliminary injunction request; also, the appeal did not fall within an exception to the mootness doctrine.  835 F.3d 1003 (2016).

  Reporter's right of access to government news conferences.  369 F. Supp. 906.

  Violated by city ordinance purporting to prohibit outdoor political signs on private and public property.  762 F. Supp. 280.

  Rule 3.5(b) of Hawaii rules of professional conduct unconstitutional, where, inter alia, language of rule 3.5(b) prohibiting ex parte communication with jurors "except as permitted by law" was unconstitutionally vague and overbroad.  916 F. Supp. 1525.

  Statements in editorial about plaintiff (when plaintiff was mayor) were protected by First Amendment and thus, not actionable.  930 F. Supp. 1403.

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs unlikely to prevail on First Amendment claims as to native Hawaiian vote.  941 F. Supp. 1529.

  Plaintiff (who previously held a position at correctional facility), was not entitled to First Amendment protection, where plaintiff's repeated grievances and complaints regarding plaintiff's lack of safety at correctional facility, i.e., plaintiff's requests for a personal security guard, did not substantially involve matters of public concern.  25 F. Supp. 2d 1124.

  Where plaintiff-physician claimed that plaintiff had been illegally harassed and retaliated against by the defendants who acted as part of an illegal conspiracy against plaintiff and that all of the defendants' actions constituted retaliation against plaintiff for exercising plaintiff's First Amendment right to speak out about inmate abuse at correctional facility, defendants, among other things, engaged in a conspiracy to deprive plaintiff of constitutionally protected rights to free speech in violation of 42 U.S.C. §1983.  99 F. Supp. 2d 1216.

  Where defendants argued that plaintiff waived constitutional right to free speech by voluntarily signing Code of Fair Campaign Practices (Code), plaintiff did not waive ability to assert First Amendment rights; campaign spending commission's (commission) administrative decision did not have preclusive effect on the court proceeding; Code unconstitutionally burdened protected speech; commission's censure of plaintiff violated plaintiff's First Amendment rights to free speech.  135 F. Supp. 2d 1114.

  In lawsuit involving a challenge to city and county of Honolulu's practice of charging nonresidents a $3 fee to enter bay designated a marine life conservation district and nature preserve, plaintiff's First Amendment rights not violated and ordinance instituting the fee not overbroad.  215 F. Supp. 2d 1098.

  Plaintiff maintained that defendant union provided inadequate information to nonmembers prior to making union payroll deductions pursuant to §89-4, in violation of Chicago Teachers Union v. Hudson.  Defendants were preliminarily enjoined from taking any action to demand and/or collect from plaintiff and class members, by any means, agency fees and from taking any other action to enforce §89-4(a), until a mechanism for withdrawing agency fees that was in compliance with Hudson was devised and approved, where plaintiff alleged, among other things, irreparable injury by arguing that any violation of Hudson notice requirements infringed upon plaintiff's First Amendment rights.  269 F. Supp. 2d 1252.

  Plaintiffs asserted that an ordinance preventing them from flying their aerial tow banners over the city's beaches violated their rights under the First Amendment; the ordinance was a reasonable, viewpoint neutral restriction on speech in a nonpublic forum.  345 F. Supp. 2d 1123.

  Defendants' motion to dismiss or for summary judgment denied, where, inter alia, taking plaintiff's allegations as true, the complaint set forth sufficient facts to support plaintiff's claim that defendants' actions infringed upon plaintiff's First Amendment rights, either because defendants' actions caused plaintiff actual harm or because those actions chilled future speech, and defendants were not entitled to qualified immunity.  400 F. Supp. 2d 1223.

  Section 446E-5(f) is not an unconstitutional restriction on free speech.  486 F. Supp. 2d 1132.

  Defendants' motions for summary judgment granted in part as to plaintiffs' First Amendment retaliation claims brought under 42 U.S.C. §1983; plaintiffs failed to provide evidence on which a reasonable jury could find a municipal policy or custom sufficient to create liability under §1983.  621 F. Supp. 2d 1019 (2008).

  Plaintiff's First Amendment retaliation claim dismissed in its entirety, where plaintiff's statements were made pursuant to plaintiff's official duties or were not substantial or motivating factors in the adverse employment action.  679 F. Supp. 2d 1188 (2009).

  Where plaintiffs challenged department of land and natural resources administrative regulations that required a permit for commercial activity (including weddings performed or arranged for a fee) on public beaches:  (1) plaintiffs had standing to make an as-applied challenge; (2) since state unencumbered beaches are non-public fora for purposes of a First Amendment analysis, regulation need only satisfy a requirement of reasonableness, and the regulations passed the test; assuming beaches were public fora, the regulations passed a stricter test for constitutionality; and (3) even if the court had jurisdiction over the breach of settlement agreement (in prior action) claim, plaintiffs would not prevail on that claim.  685 F. Supp. 2d 1140 (2010).

  Plaintiff could not maintain the present action where plaintiff had agreed to "forever release, acquit, and discharge" the claims in the mutual release and settlement agreement in plaintiff's first action.  686 F. Supp. 2d 1079 (2010).

  Contribution limit in §11-358 is unconstitutional as applied to plaintiffs' proposed contributions to an entity that engages in solely independent expenditures in excess of the statutory limit; plaintiffs' motion for preliminary injunction granted.  744 F. Supp. 2d 1075 (2010).

  Hawaii's government-contractor ban on direct campaign contributions set forth in §11-355 was constitutional as applied to plaintiff noncandidate committee and government contractor's proposed contributions; given the public role of legislators and the power (or perceived power) they can have in contractual matters, applying the contribution ban was closely connected to the government interest in refuting at least the perception of corruption in the electoral process; it functions to alleviate even the appearance of a connection (a quid pro quo) between a government contractor and a candidate for public office.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's as-applied challenge to the definition of "noncandidate committee" in §11-302 failed; plaintiff actively participated in our democracy; it was not unconstitutional to require it to comply with campaign finance laws that are substantially related to important government interests; Hawaii has a substantial interest in imposing noncandidate committee disclosure requirements on an organization--like plaintiff--that actively engages in political activity.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's as-applied challenge to the disclaimer requirement in §11-391(a)(2)(B) and the corresponding definition of "advertisement" in §11-302, which included the "electioneering communications" definitions in §11-341(c), rejected; the court concluded that the plaintiff's advertisements fit within the regulatory "safe harbor"--they were an "advertisement" that was an "electioneering communication" and was the functional equivalent of express advocacy under §11-341(c).  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's challenge to the definition of "noncandidate committee" in §11-302 failed; the statute was substantially related to important governmental interests as "[i]ts coverage vindicates the government's interest in an informed electorate without imposing on nonpolitical organizations unnecessarily" and was square with the U.S. Supreme Court in Citizens United; thus, Hawaii's noncandidate committee requirements did not facially violate the First Amendment.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's facial challenge to the disclaimer requirement in §11-391(a)(2)(B) failed; disclosure requirements could apply to issue advocacy, so long as the exacting scrutiny test was otherwise met, and disclosure and disclaimer requirements--such as requiring a disclaimer under federal law that a communication "was not authorized by any candidate or candidate's committee"--satisfied the exacting scrutiny test; in effect, the U.S. Supreme Court in "Citizens United had effectively disposed of any attack on ... attribution and disclaimer requirements".  872 F. Supp. 2d 1023 (2012).

  Section 11-358 limits the amount of contributions a person can make to a noncandidate committee; if that noncandidate committee makes only independent expenditures, then pursuant to the U.S. Supreme Court in Citizens United, Hawaii cannot limit those expenditures; plaintiff donors' contributions to a noncandidate committee could only lead to independent expenditures; therefore, the section was unconstitutional as applied to plaintiff donors' contributions to a noncandidate committee and defendants were permanently enjoined from enforcing the section's contribution limitation in that situation.  872 F. Supp. 2d 1023 (2012).

  Plaintiff's First Amendment claim against police department and police chief failed multiple steps; among other things, the police department had a legitimate reason for conducting the second internal affairs investigation and it did not involve speech by plaintiff, much less speech on a matter of public concern.  937 F. Supp. 2d 1220 (2013).

  Material questions of fact precluded a determination as to whether defendant, an off-duty police officer on special assignment, was entitled to qualified immunity in a 42 U.S.C. §1983 action.  The court could not determine, as a matter of law, whether plaintiffs, evangelical Christians distributing gospel tracts, were directed to move by defendant because they presented a risk to pedestrian safety or because the Maui fair permit holders wanted plaintiffs removed.  98 F. Supp. 3d 1133 (2015).

  Where plaintiffs asserted that defendant police officer violated their rights of freedom of speech, assembly, and religious exercise:  (1) police officer, working on special duty assignment providing security at the Maui county fair, was acting under color of state law for purposes of 42 U.S.C. §1983; (2) regardless of whether the sidewalk area outside of the Kanaloa gate was technically encompassed by the third party defendants' permit, it remained a traditional public forum; and (3) material questions of fact existed as to whether plaintiffs' First Amendment activities actually impeded the purported government interest in protecting pedestrian safety and whether there were ample alternatives for plaintiffs' communication.  98 F. Supp. 3d 1133 (2015).

  Assuming that condemnee's placing a semi-permanent sign on the condemned property constituted protected speech, having failed to raise a genuine issue of material fact that the condemnor removed condemnee's signs from the property because of the speech on the signs, court granted condemnor's motion for summary judgment.  Undisputed evidence established that condemnor gave condemnee multiple written warnings that it would remove any personal property after condemnor took exclusive possession, and in light of that warning, removal of signs would have occurred regardless of whether they contained an expression of speech and regardless of the content of that speech.  Thus, there was no retaliation for exercising free speech rights.  125 F. Supp. 3d 1080 (2015).

  Where condemnee challenged the removal of condemnee's protest signs from condemned property after condemnor took exclusive possession of the property, at most, the property was, at that time, a non-public forum for free speech purposes.  In taking exclusive possession after issuance of quick-take possession order, condemnor informed condemnee that the property was not open to either condemnee or the public at large, and that any activities by condemnee or others were prohibited.  These actions by the condemnor were reasonable.  The condemnor wished to build a fire station on the property, and allowing the public to use the property in any manner, regardless of the type of activity or the content of any speech on the property, would conflict with that purpose.  125 F. Supp. 3d 1080 (2015).

  In 42 U.S.C. §1983 action brought by native Hawaiians and Hawaii residents of non-Hawaiian ancestry challenging statutory restrictions on registering for "roll" of qualified native Hawaiians as violative of their First Amendment and equal protection rights, the public interest would not be served by a preliminary injunction to halt nonprofit corporation's private election of native Hawaiian delegates to a convention of native Hawaiians to discuss, and possibly organize, native Hawaiian governing entity.  Plaintiffs were not likely to be deprived of any constitutional rights, and granting injunction would potentially affect approximately 100,000 people on nonprofit corporation's voter list who may want to participate in the process of self-determination.  141 F. Supp. 3d 1106 (2015).

  While plaintiffs claimed that their inclusion on a roll of native Hawaiians through the Office of Hawaiian Affairs (OHA) registry violated their right against compelled speech or right not to register to vote and sought a preliminary injunction to halt nonprofit corporation's private election of native Hawaiian delegates to a convention of native Hawaiians to discuss, and possibly organize, native Hawaiian governing entity, OHA did not require affirmations of sovereignty or civic connection to native Hawaiian community. Thus, being on the roll did not compel statement as to sovereignty, and plaintiffs could have removed their names from the roll.  141 F. Supp. 3d 1106 (2015).

  Right to receive information and ideas not infringed by statutes proscribing possession of marijuana.  56 H. 501, 542 P.2d 366.

  Where the defendants' purpose was to claim and manage, control, and subsequently occupy Kaho‘olawe, the defendants' intent to communicate through their presence on Kaho‘olawe could not be deemed "speech" for purposes of the First Amendment freedom of speech protections.  132 H. 36, 319 P.3d 1044 (2014).

  Standard for suppression of evidence where seizure violated freedom of speech or expression.  63 H. 596, 634 P.2d 80.

  Ordinance prohibiting distribution of commercial handbills in Waikiki impermissibly regulated commercial speech.  64 H. 148, 637 P.2d 1117.

  Peddling ordinance unduly restricted commercial speech.  64 H. 499, 643 P.2d 1058.

  Attorneys' extrajudicial statements may be subject to prior restraint by trial court upon demonstration that the activity restrained poses a serious and imminent threat to defendant's right to a fair trial and to the fair administration of justice.  73 H. 499, 835 P.2d 637.

  Section 707-716 not unconstitutional where threats sufficiently unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and imminent prospect of execution.  75 H. 398, 862 P.2d 1063.

  Where plaintiff was removed from project, State did not violate the Hawai`i Whistleblowers' Protection Act or the First Amendment when it reassigned the project to someone else.  76 H. 332, 876 P.2d 1300.

  Defendant's statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff.  88 H. 94, 962 P.2d 353.

  Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats" under §§707-715 and 707-716.  95 H. 465, 24 P.3d 661.

  Where student manager was a public agent of the university and manager did not identify any matter of public concern addressed by manager's racial slur directed at complainant or accompanying threatening statements, manager's speech was not protected speech.  102 H. 307, 76 P.3d 550.

  A "misrepresentation" made under the mantle of "self-advocacy" at a department hearing is not constitutionally protected by this Amendment.  113 H. 1, 147 P.3d 785.

  Where there was no evidence that the "interior work area" of the state department of transportation building where the union bulletin board was located had been transformed from a "non-public forum" into a public forum, bulletin board remained a non-public forum; thus, where the State's bulletin board posting prohibition was against all campaign materials, and not simply against materials advocating a particular viewpoint, the prohibition against campaign materials on the union bulletin board was not in violation of this Amendment.  116 H. 73, 170 P.3d 324.

  Section 852-1 not unconstitutional as it does not prohibit picketing or the communication of messages altogether, is specifically aimed at conduct causing an obstruction of ingress to or egress from public or private places, and individuals may continue to exercise rights guaranteed by the First Amendment and article I, §4 of the Hawaii constitution as long as they do not do so in a manner prohibited by section.  89 H. 27 (App.), 968 P.2d 194.

  Defendant's continuing physical obstruction of the lawful work by the Hawaii county department of water supply on Hawaiian home lands property constituted conduct clearly outside the scope of any First Amendment right to freedom of speech.  105 H. 319 (App.), 97 P.3d 395.

  As the First Amendment does not protect speech which is part of a course of criminal conduct, and defendant's words were an integral part of defendant's conduct in violating a valid statute prohibiting offers or agreements to engage in sex for a fee (§712-1200), defendant's prosecution did not violate this Amendment.  107 H. 360 (App.), 113 P.3d 811.

  A qualified public right of access to a transcript of a closed proceeding is present under both this Amendment and article I, §4 of the Hawaii constitution, once the overriding interests that militated for closure of the proceeding are no longer viable; the same procedural and substantive protections that must be observed by a court considering closure of courtroom proceedings in which the public has a potential qualified right of public access must also be observed if a court is contemplating to deny access to the transcript of the closed proceeding.  133 H. 482, 331 P.3d 460 (2014).

  Section 707-756, electronic enticement of a child in the first degree, is not overbroad because it:  (1) does not implicate the freedoms of expression guaranteed under this Amendment or article I, §4 of the Hawaii constitution; and (2) does not reach a substantial amount of constitutionally protected conduct.  134 H. 515, 345 P.3d 181 (2015).

 

Petitioning of government.

  Section 89-14, by vesting the labor relations board with exclusive original jurisdiction over plaintiff's action, did not violate this Amendment, as the administrative dispute resolution process set forth in chapter 89 did not preclude plaintiff from seeking redress from the courts; plaintiff could appeal an unfavorable decision issued by the board to the circuit court and was thus not deprived of reasonable access to the courts.  125 H. 317 (App.), 260 P.3d 1135 (2011).

 

Right of privacy.

  Where plaintiff failed to show sufficient likelihood that state child protective services agency would violate plaintiff's privacy rights in the future, plaintiff lacked standing to seek injunctive relief against agency.  68 F.3d 331.

  Sex education film series shown to fifth and sixth grades with excusal system which permitted parents to have their children excused from viewing films did not contravene parents' right of privacy.  52 H. 436, 478 P.2d 314.

  Where police forcibly entered petitioner's home in pursuit of petitioner's son without a warrant and in the absence of any exigent circumstances, there was no conceivable basis in the law to uphold the entry as valid; thus, trial court's conclusion to the contrary reversed.  121 H. 74, 214 P.3d 613.

 

Search and seizure generally.

  Container search by government agents that occurred at the U.S. border as the container was entering the country, was conducted in a reasonable manner and the searches of defendant at the airport as defendant was exiting the country, were constitutionally valid.  610 F. Supp. 2d 1234.

  Where police consent form stated that search of defendant's automobile and its contents was expressly confined to evidence of "firearms, ammunition", and officer acknowledged that the wallet was lying closed on the seat and that officer searched the wallet for ammunition but that officer was not nervous because officer could not "feel anything", officer 's observations did not reasonably suggest the presence of ammunition in the wallet; thus, the continued search of the wallet that uncovered another person's license was objectively unreasonable and exceeded the scope of defendant's consent.  121 H. 533 (App.), 221 P.3d 511.

  Navy police officer's initial search of defendant's car after defendant drove defendant's car back through the base gate and subsequent search by federal agents were supported by probable cause given the collective knowledge of the officers who were involved in the investigation and apprehension of defendant and thus were valid under the federal automobile exception to the warrant requirement; given the proximity in time and location to the reported theft involving defendant, the large amount of money involved and other circumstances, there was probable cause to believe that the missing money or other evidence would be present in defendant's car.  122 H. 2 (App.), 222 P.3d 409.

 

 

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