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t ~ M ~ RECMM w~ nrrb ------By-------_---...` TO: Hawaii County Council ' - A W A 1 9 nIy Cecil N AMERICAN CIVIL FROM: Sandy S. Ma, Legal Director ACLU ofHawai'i LIBERTIES UNION RE: Bill 286 (1998), Regulating the Place and Manner of OF HAWAII FOUNDATION Soliciting for Money or Objects of Value in the Downtown Hilo Commercial Area Post Office Box 3410 Honolulu, Hawaii 96801 T 808.522-5900 Hearing Date: Hilo County Building, Nov. 18, 1998, 9:00 a.m. F 808 • 522-5909 The American Civil Liberties Union of Hawaii renews our objections to Bill 286. This bill seeks to curtail the First Amendment rights of the needy, the disadvantaged and the disenfranchised without any adequate justification. It also duplicates existing laws dealing with harassment and assault and therefore, is unnecessary. The courts have clearly held that solicitation and begging are protected under the First Amendment freedom of speech provision of the United States Constitution. See United States v. Kokinda, 497 U.S. 720 (1990); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). When government acts to restrict First Amendment activity, like Bill 286 is seeking to do, its ability to limit freedom of speech depends upon the nature of the forum involved. Bill 286 prohibits aggressive solicitation in any public place, triggering public forum analysis for determining whether or not government can limit people's First Amendment rights. When government seeks to regulate speech in a public place or forum, such a prohibition is subject to the highest judicial scrutiny. Perry Educ. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983). Public places, such as streets, sidewalks and parks, are historically associated with the free exercise of expressive activities. The ability to engage in First Amendment protected activities in public places must be vigorously preserved. Bill 286 seeks to regulate protected expression in public areas and thus, it must be subject to exacting scrutiny to determine if it will pass constitutional muster. Government regulation of speech and/or expression in public places is unconstitutional if it acts to prohibit communication because of the content of the message. Government cannot prohibit speech because it disagrees with the content of the message. It is plain that Bill 286 seeks to regulate solicitation because it disagrees with the message trying to be conveyed. Division 2, sec. 2( c ) of Bill 2" 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, or does not have that need." Division 2, sec. 2(1) states "[n]o person shall solicit from any operator or occupant of a motor vehicle on a public street in exchange for blocking, occupying, or reserving a public parking space, or directing the operat o q ( O File Nc File No. CG STA~ presentee, CovNC/L Set. Tol - tt4. Dv ~l d_ 1