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ACLU Uf HAWAI' I TO: Finance Committee, Hawaii County Council f FROM: Sandy S. Ma, Legal Director ACLU of Hawaii RE: Bill 286 (1998), Regulating the Place and Manner of Soliciting for Money or objects of Value in the Downtown Hilo Commercial Area Hearing Date: Tuesday, October 6, 1998, 10:30 a.m. The American Civil Liberties Union of Hawaii objects to Bill 286. This bill to eliminate aggressive begging suffers from several infirmities. The proposed ordinance duplicates existing laws dealing with harassment and assault and therefore is unnecessary. The bill is also a mean-spirited attempt to stifle the First Amendment rights of the less fortunate. Moreover, the bill is too broad and will prevent even the activities of charitable organizations. Hawaii already has laws to stop people from dangerous, harassing and abusive behavior. Harassment, engaging in threatening behavior (including being unreasonably loud), intimidation, stalking and terroristic threatening are all prohibited under current law. Bill 286 clear is not necessary. Proposed Bill 286 also violates people's First Amendment rights. The courts have held that solicitation even for money is a protected First Amendment activity. United States v. Kokinda, 497 U.S. 720, 725 (1990). The bill does not recognize that people have First Amendment rights when soliciting. It states that "[n]o person shall solicit by stating that funds are needed to meet a specific need, when the solicitor has the funds to meet that need, does not intend to use funds to meet that need, or does not have that need." Bill 268, division 2, Sec. 2( c This restriction is clearly content-based in that it seeks to regulate the speaker's message. Content- based restrictions seldom withstand constitutional scrutiny. It is very doubtful that the courts will find that the state has a compelling reason to regulate the content of a person's speech in this situation. Furthermore, the bill also prevents solicitation in public areas, such as the public sidewalks near financial institutions, ATMs, buildings, telephones, bus stops, etc. Public areas are historically devoted to free speech. Restrictions on speech in public areas are subject to heightened scrutiny and must not regulate the speaker's content. This bill, however, has demonstrated that it seeks to regulate the content of what a person says. The bill is also broadly written. The definition of solicitation covers solicitors for groups such as the Salvation Army, Greenpeace, churches, political organizations, etc. Because the bill is overbroad, it may have difficulty surviving constitutional review. 0a=nL No. 03 FWN, c c SrR ad. Tbt_C.0uAc'L Rd. Dam M1