Section 4.  No law shall be enacted 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. [Ren and am Const Con 1978 and election Nov 7, 1978]


Attorney General Opinions


  Granting permission to student religious group to use university facilities on same basis as other student groups is not in contravention of U.S. or state Constitution.  Att. Gen. Op. 64-54.

  Policy regarding devotional exercise in public schools is contrary to the First and Fourteenth Amendments to the U.S. Constitution.  Att. Gen. Op. 66-15.

  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.


Law Journals and Reviews


  Metromedia, Inc. v. City of San Diego:  The Conflict Between Aesthetic Zoning and Commercial Speech Protection; Hawaii's Billboard Law Under Fire, Note.  5 UH L. Rev. 79.

  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 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.

  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.

  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.

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


Case Notes


Freedom of press.

  See also notes to U.S. Const. Amend. 1.

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


Freedom of religion.

  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).

  Under the First Amendment to the U.S. Constitution and this section, 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.

  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).

  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.

  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.

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

  Protected speech does not include unprotected obscenity under the First Amendment of U.S. Constitution.  58 H. 440, 573 P.2d 945.

  Procedural requirements for seizure of materials in obscenity prosecutions.  63 H. 596, 634 P.2d 80.

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

  Purchase of allegedly obscene material from "willing sellers" was actually "preconceived search" designed to evade warrant procedures whose specific purpose is protection of First Amendment freedoms.  64 H. 109, 637 P.2d 1095.

  Police involvement in enforcing the hospital's right against trespass did not convert actions into a state action; appellants did not have a right to distribute leaflets and express anti-abortion views on hospital premises.  71 H. 190, 787 P.2d 216.

  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.

  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.

  The right to free speech under this section was not violated by city ordinance requiring that the area of a booth designated for viewing pornographic videos purchased on the premises of a panoram business be visible from the booth's entryway.  107 H. 314, 113 P.3d 190.

  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 the First Amendment.  116 H. 73, 170 P.3d 324.

  Where union's retaliation claims provided a basis for both a prohibited practice claim and claims under the Hawaii Whistleblowers' Protection Act and this section's freedom of speech clause, the intermediate court of appeals properly applied the doctrine of primary jurisdiction to the retaliation claims.  133 H. 188, 325 P.3d 600 (2014).

  A qualified public right of access to a transcript of a closed proceeding is present under both the First Amendment and this section, 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).

  The qualified right of access to criminal trials under this section is not extinguished by the mere necessity to conduct midtrial examination of jurors to investigate potential juror misconduct; however, a defendant's article I, §14 right to a fair trial is an overriding interest that may require such proceedings be held in closed court.  The hearing should be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.  133 H. 482, 331 P.3d 460 (2014).

  The qualified right of public access provided by this section can be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The procedural prerequisites to entry of an order closing a criminal proceeding to the public are:  (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated.  The substantive reasons that must be found and included in the findings are:  (1) the closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.  133 H. 482, 331 P.3d 460 (2014).

  This section provides the public with a qualified right of access to observe court proceedings in criminal trials.  133 H. 482, 331 P.3d 460 (2014).

  Where circuit court conducted five separate court proceedings that were not open to the public and the transcript of the proceedings was sealed until approximately six months after a mistrial was declared, the public's qualified right of access to the transcript was not adequately protected at the time the circuit court sealed the transcript because the circuit court did not observe the procedural and substantive steps necessary to ensure public access was adequately considered; further, the circuit court improperly continued to deny access to the transcript when the potential risk of harm to any compelling interests that had precipitated closure had passed.  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 the First Amendment of the United States Constitution or this section; and (2) does not reach a substantial amount of constitutionally protected conduct.  134 H. 515, 345 P.3d 181 (2015).

  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.


Restraining orders.

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



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