A federal lawsuit against the State Department of Accounting and General Services (“DAGS”) charges that outdated rules restricting public use of State property (including the Hawaii State Capitol rotunda and grounds) violate the First Amendment to the U.S. Constitution. Plaintiffs for the lawsuit are the American Civil Liberties Union of Hawaii (“ACLU”) and Pamela G. Lichty, President of the Drug Policy Action Group and ACLU board member. They are represented by Daniel M.Gluck, Senior Staff Attorney for the ACLU and Alexandra Rosenblatt of Chun Kerr, LLLC.
The lawsuit asks the court to require DAGS to remove burdensome requirements for obtaining a permit – including requirements that small groups have to get the government’s permission before holding a protest; that individuals have to agree to indemnify the State for any injuries arising from their protest (even if the injuries are caused by the protesters’ opponents); and that individuals or groups apply for a permit weeks in advance (with no exception for spontaneous demonstrations in response to sudden events or news).
The ACLU informed DAGS of these problems over three and a half years ago (more than a year before the 2011 Asia-Pacific Economic Cooperation meeting). The ACLU continued to inform the State of these problems through 2011, 2012, and 2013, but the State has neither changed its rules nor issued any new policies to correct these problems.
The ACLU has assisted several groups in navigating the unlawful permit process, but does not know how many other individuals or groups have been deterred from holding a demonstration because of DAGS’ unconstitutional rules. Honolulu now plans to host Secretary of Defense Chuck Hagel and defense ministers of the 10-nation Association of Southeast Asian Nations April 1-2, and the ACLU hopes that this lawsuit will ensure that any individuals or groups that want to demonstrate on State property during the ASEAN Conference (or any other matter) are able to do so.
Daniel M. Gluck said: “After three years of being rebuffed by DAGS and the Attorney General?s office to resolve these issues administratively, it’s clear that the State won’t take any action without being sued. We need to ensure that the free speech rights of all people are respected and protected, particularly on state grounds such as the Capitol, to show that our government is open, transparent, and participatory.”
Alexandra Rosenblatt said: “Current permitting practices could prevent people from gathering around a legislative measure or breaking community crisis. The State requires a fourteen day lead time for permits, yet legislative hearings only have a 2-3 day lead time. The State also requires that permit holders waive all claims against the state as a condition of exercising their first amendment rights. DAGS has made exceptions, but the absence of consistent, objective standards raises a concern that groups could be treated differently based on the content of their speech. When it comes to our government and state capitol there is no room for opaque rules that hinder community voices from being heard.”
The ACLU’s First Amendment Toolkit is a free guide for those considering demonstrations at the Hawaii State Capitol, or at parks, beaches, sidewalks and more statewide.