FREEDOM OF RELIGION, SPEECH, PRESS,

ASSEMBLY AND PETITION

 

     Section 4.  No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Granting permission to student religious group to use university facilities on same basis as other student groups is not in contravention of U.S. or state Constitution.  Att. Gen. Op. 64-54.

  Policy regarding devotional exercise in public schools is contrary to the First and Fourteenth Amendments to the U.S. Constitution.  Att. Gen. Op. 66-15.

  Statute which would include newspapers within definition of public utility and subject them to PUC jurisdiction would be violative of freedom of the press.  Att. Gen. Op. 74-11.

 

Law Journals and Reviews

 

  Metromedia, Inc. v. City of San Diego:  The Conflict Between Aesthetic Zoning and Commercial Speech Protection; Hawaii's Billboard Law Under Fire, Note.  5 UH L. Rev. 79.

  Estes v. Kapiolani Women's and Children's Medical Center:  State Action and the Balance Between Free Speech and Private Property Rights in Hawaii.  13 UH L. Rev. 233.

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

  The Lum Court and the First Amendment.  14 UH L. Rev. 395.

  Burdick v. Takushi:  Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate.  14 UH L. Rev. 715.

  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah:  Reaffirming the Supreme Court's Religious Free Exercise Jurisdiction.  16 UH L. Rev. 401.

  Curing A Bad Reputation:  Reforming Defamation Law.  17 UH L. Rev. 113.

  Hawai‘i's Response to Strategic Litigation Against Public Participation and the Protection of Citizens' Right to Petition the Government.  24 UH L. Rev. 411.

  Emergency Contraception in Religious Hospitals:  The Struggle Between Religious Freedom and Personal Autonomy.  27 UH L. Rev. 65.

 

Case Notes

 

Freedom of press.

  See also notes to U.S. Const. Amend. 1.

  News media liable for negligent defamation of private person.  56 H. 522, 543 P.2d 1356.

 

Freedom of religion.

  Under the First Amendment to the U.S. Constitution and this section, civil courts have no authority to resolve disputes that turn on matters of church doctrine, practice, polity, or administration or that cannot be decided without resolving underlying controversies over such matters.  When faced with such claims, civil courts must dismiss them.  77 H. 383, 885 P.2d 361.

  Not violated by director's failure to grant building height restriction zoning variance for temple hall where plaintiff Buddhist temple failed to demonstrate substantial burden on its free exercise of religion because of height restriction.  87 H. 217, 953 P.2d 1315.

  Where church was not a hierarchical church, but a congregational church that made decisions by a vote of its members as set forth in its "petition for charter" of incorporation and by-laws, the church was governed by chapter 414D; thus, appellants should have been allowed to amend their complaint, had standing to contest their expulsion, and were not precluded from doing so by the ecclesiastical abstention doctrine; also, doctrine did not bar appellants' complaint to the extent it did not require resolution of controversies over church doctrine, law, or polity.  118 H. 165 (App.), 185 P.3d 913.

 

Freedom of speech.

  In lawsuit involving a challenge to city and county of Honolulu's practice of charging nonresidents a $3 fee to enter bay designated a marine life conservation district and nature preserve, plaintiff's First Amendment rights not violated and ordinance instituting the fee not overbroad.  215 F. Supp. 2d 1098.

  Right to receive information and ideas not infringed by statute proscribing possession of marijuana.  56 H. 501, 542 P.2d 366.

  Protected speech does not include unprotected obscenity under the First Amendment of U.S. Constitution.  58 H. 440, 573 P.2d 945.

  Procedural requirements for seizure of materials in obscenity prosecutions.  63 H. 596, 634 P.2d 80.

  Standard for suppression of evidence where seizure violated freedom of speech or expression.  63 H. 596, 634 P.2d 80.

  Purchase of allegedly obscene material from "willing sellers" was actually "preconceived search" designed to evade warrant procedures whose specific purpose is protection of First Amendment freedoms.  64 H. 109, 637 P.2d 1095.

  Police involvement in enforcing the hospital's right against trespass did not convert actions into a state action; appellants did not have a right to distribute leaflets and express anti-abortion views on hospital premises.  71 H. 190, 787 P.2d 216.

  Attorneys' extrajudicial statements may be subject to prior restraint by trial court upon demonstration that the activity restrained poses a serious and imminent threat to defendant's right to a fair trial and to the fair administration of justice.  73 H. 499, 835 P.2d 637.

  Defendant's statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff.  88 H. 94, 962 P.2d 353.

  Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats" under §§707-715 and 707-716.  95 H. 465, 24 P.3d 661.

  The right to free speech under this section was not violated by city ordinance requiring that the area of a booth designated for viewing pornographic videos purchased on the premises of a panoram business be visible from the booth's entryway.  107 H. 314, 113 P.3d 190.

  Where there was no evidence that the "interior work area" of the state department of transportation building where the union bulletin board was located had been transformed from a "non-public forum" into a public forum, bulletin board remained a non-public forum; thus, where the State's bulletin board posting prohibition was against all campaign materials, and not simply against materials advocating a particular viewpoint, the prohibition against campaign materials on the union bulletin board was not in violation of the First Amendment.  116 H. 73, 170 P.3d 324.

  Section 852-1 not unconstitutional as it does not prohibit picketing or the communication of messages altogether, is specifically aimed at conduct causing an obstruction of ingress to or egress from public or private places, and individuals may continue to exercise rights guaranteed by the First Amendment and article I, §4 of the Hawaii constitution as long as they do not do so in a manner prohibited by section.  89 H. 27 (App.), 968 P.2d 194.

  Defendant's continuing physical obstruction of the lawful work by the Hawaii county department of water supply on Hawaiian home lands property constituted conduct clearly outside the scope of any First Amendment right to freedom of speech.  105 H. 319 (App.), 97 P.3d 395.

 

Restraining orders.

  Obstructing use of university office constituted conduct outside of First Amendment rights, and ex parte temporary restraining order was not constitutionally invalid.  52 H. 427, 478 P.2d 320.