HomeMy WebLinkAboutCOM 0966.003 1996-1998
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
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In conclusion, the ACLU strenuously objects to this bill. It is an attempt to
erode the First Amendment protections for a group of people that is clearly
already disadvantaged in current society. The spirit of Aloha and tolerance
should not be forgotten in these trying economic times. Thank you for the
opportunity to testify.