STAND. COM. REP. NO.2822

Honolulu, Hawaii

, 2002

RE: S.B. No. 2115

 

 

Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred S.B. No. 2115 entitled:

"A BILL FOR AN ACT PROPOSING AN AMENDMENT TO ARTICLE I, SECTION 4, OF THE CONSTITUTION OF THE STATE OF HAWAII TO EXPAND THE CONSTITUTIONAL GUARANTEE OF FREE SPEECH TO QUASI-PUBLIC FACILITIES,"

begs leave to report as follows:

The purpose of this measure is to propose an amendment to article I, section 4, of the Hawaii State Constitution to expand the constitutional guarantee of free speech to quasi-public facilities.

Testimony in support of this measure was received from the ILWU.

This measure is intended to clarify the exercise of the right to free speech. The amendment proposes to allow every person to speak, write, or publish freely the person's sentiments on all subjects in any forum. The amendment conditions the exercise of the right on the person being responsible for the abuse of that right.

According to testimony of the ILWU, this measure which is almost identical to a provision in California's state constitution, is intended to extend free speech rights to quasi-public forums such as shopping centers, and to private property such as sidewalks, streets, parks, and retail business districts. Your Committee prefers that this measure pass to be voted on by the general public. It is the hope of your Committee that the public will make an informed voting decision after sufficient public education and debate preceeding the election.

The language of the proposed constitutional amendment is almost identical to article 1, section 2 of the California Constitution which states:

"(a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."

The California constitutional provision was held by the U.S. Supreme Court in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), to permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public was invited, without violation to the shopping center owner's free speech rights under the First and Fourteenth Amendments to the United States Constitution. The rationale was based on the shopping center not being limited to the personal use of its owner, so views expressed by members of the public would not likely be identified with those of its owner. Furthermore, the shopping center owner was free to publicly disassociate with the views of the speakers or handbillers.

Locally, in Estes v. Kapiolani Women's and Children's Medical Center, 71 Haw 190 (1990), the Hawaii Supreme Court allowed plaintiff appellants to distribute leaflets and express certain views at one of the main entrances to Kapiolani Hospital. The Hospital asked them to leave, which they refused and police were called whereupon they left the premises. They filed for injunctive relief against the hospital. The court said:

"There are circumstances, however, in which private property rights must give way to free speech rights of citizens. ... [T]he United States Supreme Court held that under some circumstances, privately owned property can be treated, for First Amendment purposes, as though it were publicly held. ... There is no dispute, however, that the right of access onto private property is premised on the fact that these places, such as sidewalks, streets, parks, and retail business districts, 'are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely." (at page 195-196, citing three U.S. Supreme Court cases)

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2115 and recommends that it pass Second Reading and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Judiciary,

____________________________

BRIAN KANNO, Chair