ACLU Lawsuit Claims State Permit Rules Violate 1st Amendment

State Capitol photo by Wendy Osher.

By Wendy Osher

The American Civil Liberties Union of Hawaiʻi has filed another federal lawsuit over alleged First Amendment violations, this time against the state Department of Accounting and General Services.

The suit claims that rules restricting the public use of state property including the Capitol rotunda and grounds, are outdated and violate the US Constitution.

A co-plaintiff in the suit is Pamela Lichty, an ACLU board member, and president of the Drug Policy Action Group.

The Drug Policy Action Group is the same organization that commissioned a Hawaiʻi opinion poll that was unveiled this legislative session, showing an increasing majority favors medical dispensaries, decriminalization and legalization of marijuana.

According to information released by the ACLU, the lawsuit seeks the removal of requirements that currently require individuals or groups to:

• obtain government permission before holding a protest;
• agree to indemnify the state for injuries arising from a protest, even if the injuries are caused by opponents;
• apply for a permit weeks in advance, with no exception for spontaneous demonstrations in response to sudden events or news.

The lawsuit calls the requirements “burdensome” and alleges the issue was raised more than three and a half years ago before the state hosted the Asia-Pacific Economic Cooperation meeting in 2011.

“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,” said Daniel Gluck, Senior Staff Attorney for the ACLU in a press release statement.

The suit was filed in advance of the Association of Southeast Asian Nations Conference taking place today and tomorrow in Honolulu.  According to the ACLU, the  event will include participation from Secretary of Defense Chuck Hagel and defense ministers from the 10 nations participating in the conference.  

The ACLU  issued a press release announcing the lawsuit saying it “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.”

The suit is the latest in a string of federal lawsuits brought by the ACLU claiming first amendment violations, including three filed in less than a year against the County of Maui.

In March 2014, the ACLU filed a lawsuit on behalf of former radio personality Neldon Mamuad claiming he is being threatened for his speech and conduct on a Facebook page he operates.

In February 2014, the ACLU and the law firm of Davis Levin Livingston filed a lawsuit over on behalf of Pastor Strat Goodhue and his wife who alleged their rights were infringed upon while handing out religious flyers on a sidewalk near the Maui Fair.

A separate lawsuit stemmed from a Jan. 21, 2013 demonstration in which members of the group Maui Peace Action joined in carrying signs as part of a Dr. Martin Luther King Jr. Day march through downtown Wailuku.

In September 2013, the parties in that case reached a settlement in which an agreement was made on rule modification that required council action for implementation.