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HomeMy WebLinkAboutCOM 0966.006 1996-1998 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 i 4 Hawai' i County Council November 18, 1998 page 2 occupant to a public parking space." These restrictions are clearly content-based in that they seek to regulate the speaker's message. Content-based restrictions very seldom withstand constitutional scrutiny. It is doubtful that the courts will find that the County has a compelling reason to regulate the content of a person's speech in these situations. Even if Bill 286 is not an unconstitutional content-based regulation, it is still not a reasonable content-neutral time, place, manner regulation of speech in a public forum. For a content-neutral regulation of free speech to survive judicial scrutiny, the regulation must: (1) be narrowly tailored to serve a significant government interest; and (2) leave ample alternatives for communication. Bill 286 is not narrowly tailored to serve significant government interests. The bill is not necessary to protect people from harassment, intimidation or assaults. Protecting the public from intimidation, threats, or coercion simply does not require that a form of speech, which is of crucial importance to those that express the speech, be precluded. Any of the acts of coercing, threatening, or intimidating, if clearly defined, may be constitutionally prohibited by the state via a statue that does not limit the freedom of speech of some citizens. Blair v. Shanahan, 775 F. Supp. 1315, 1324 (N.D. Cal. 1991). Hawaii already has laws to stop people from engaging in 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.' The existence of these readily available statues for dealing with the "evils" feared by the County means that the ordinance at issue here is not narrowly tailored to meet government interests. It is clear that Bill 286 suffers from many constitutional infirmities and will have difficulty passing judicial review. The ACLU opposes the passage of Bill 286. While the ACLU understands the Hawaii County Council's need to protect Hilo citizens from abusive behavior, this bill does not achieve that end and hurts a segment of the population that is already in severe distress. In these trying economic times, we should not seek to compound the suffering of those less fortunate. If indeed solicitors are engaging in assaultive or harassing behavior, there are already laws to prevent such acts. Let us not abuse our good fortune and positions of authority to cause additional suffering on the most impoverished in our community. ' Chapter 711 (Offenses Against Public Order) of the Hawai' i Revised Statutes prohibits disorderly conduct, obstructing, harassment and harassment by stalking. Chapter 709 (Offenses Against the Person) prohibits assaults and terroristic threatening.