First Amendment Issues
Price of Paradise · Hawaii Public Radio · aired 1994-06-12
Guests: Jon Van Dyke (Professor of Law, University of Hawaii); Dan Foley (civil rights attorney)
Duration: 1:08:58

[00:00:04] Randall Roth: Good morning. I'm Randy Roth, host of the Price of Paradise Radio Show. Today's topic is First Amendment issues that touch our lives. Situations to be covered range from t-shirts being sold on the sidewalks of Waikiki to a song the Department of Education said couldn't be sung at graduation. My guests, John Van Dyke and Dan Foley, are two highly regarded constitutional lawyers personally involved in many of these matters. Your calls are welcome. The number is 955-8821. Neighbor Islanders are invited to call collect. Well, Dan, I think a lot of people are absolutely bewildered as to why it is that organizations can set up shop right on the sidewalks of Waikiki and successfully claim that their commercial activities are protected speech. There must be something to the argument because these organizations are still there. Can you explain briefly, in a way that will make sense to all of us, how that came to be?
[00:01:03] Dan Foley: My clients, which are two religious non-profit organizations that do sell, uh, message-bearing t-shirts on Kalakaua Avenue, uh, claim that right under fully protected speech, under the First Amendment to the United States Constitution. And primarily, they cite a decision of the Ninth Circuit Court of Appeals, uh, known as the Gaudi decision, where the Ninth Circuit Court of Appeals, uh, basically said that if you have a message-bearing t-shirt, uh, expressing some religious, ideological, uh, political message which is consistent with the activities and purposes of that organization, that's fully protected speech. And the government is limited in terms of the manner in which they can regulate that speech.
[00:01:50] Randall Roth: John, is is your reading of that Ninth Circuit opinion roughly the same as Dan's?
[00:01:55] Jon Van Dyke: The the Ninth Circuit said that the speech was fully protected, but that's only one part of the equation. We protect a whole range of activities under the First Amendment, but that doesn't mean that you can do them anywhere, anytime and according to any method that you want to to do them. So then one needs to go through a a second analysis which the court calls a time, place, manner analysis. Can you have a content-neutral rule that would restrict the activities that are protected, but limit them to certain locations, certain times, certain uh methods of dissemination.
[00:02:30] Randall Roth: Can you tell me what do you mean by content-neutral?
[00:02:33] Jon Van Dyke: That means that the government is not favoring one point of view over another point of view. There was one case so where the the government allowed people to use the military uniforms in productions only if they productions uh favored the military as a um way of life for our society. But if you criticize the military, you could not use the military uniform. Well, that's an easy one. The court said, uh, you can't favor one point of view over another point of view, uh and we derive from that the the view that government regulations must be content-neutral. They must not favor one perspective over over another.
[00:03:12] Randall Roth: Okay. In just a moment, I I want to have both of you comment on on the current anti-peddling ordinance that we have on the books. And then, as I understand it, the administration has has a bill that John I believe you've been involved in in putting together, and uh then the council has a couple of bills that they've been debating and and so there's a lot of activity, but before we get to that, we've got a caller, Betty from Kailua. Betty, you're on the air.
[00:03:37] Caller: Thank you so much. Oh, I'll try to make it brief. I I do get over emotional about this issue and my aesthetic sense, I guess gets in my way of understanding the other side. I feel that we are being held hostage, we, citizens, without a, uh, I don't have the the interest. I'm not a merchant in Waikiki, I'm not in the hotel industry, but I have been forced to stay away from Kalakaua Avenue for from now and forever because of this disgusting situation, and I I feel that it's a lot of baloney this business of Second Amendment or First Amendment rights. Uh, it didn't exist a few years ago. I and I don't there must be a let's say a loophole, the loophole that they're using their side. Uh, the citizenship. If I had a lot of money, believe me, I would I would start citizen action in the courts against these people. They are violating our right to to enjoy Kalakaua Avenue. They are violating our of our rights to in to enjoy Waikiki as a whole. And I resent it terribly, and I would like to to know uh what right they have to be doing this to us.
[00:04:58] Randall Roth: Thank you, Betty. Um Dan, can you can you respond to to Betty's concerns other than to simply say that there's a Ninth Circuit opinion that allows, uh in your opinion, what's going on down there?
[00:05:11] Dan Foley: Well, Betty's view is pretty much all I've heard since I began this case. So I I'd say that's a very common view. You you haven't won any popularity contests lately? Not at all. I I'd say that's certainly close to the consensus of the general public. The particular uh interest she cited was aesthetic and that's an interest that's being argued, uh by the city administration in court and and in support of the various bills that's proposing as a significant government interest, that justifies restriction on that First Amendment activity. The restriction though has to be narrowly tailored to serve that significant government interest and leave up open ample alternative means of communication and that's basically what the debate is right now, in court and in the city council. And whether Betty's view can prevail in court, or what within the city council remains to be seen. I've been representing controversial and unpopular groups for some time as a civil rights attorney and as the former legal director of the ACLU of Hawaii. And it's my experience that usually the battles on whether or not an activity is covered by the First Amendment speech and and what legitimate restriction the government can impose, usually happens on the fringe or or with the most unpopular and and con controversial groups as we have with the t-shirt vendors.
[00:06:34] Randall Roth: Betty, what do you think?
[00:06:36] Caller: Well, I feel that that this whole business of First Amendment rights is a trumped-up thing. It's a big shibai, it's a uh you know it it as I say they they saw this as a way to make money. It's not free expression. I mean it it's I I just the whole thing as I say in a way, it's a big shibai.
[00:06:56] Randall Roth: You know, I think the point you raise is a is a real important one and let me ask Dan and then get John's thoughts on this. Uh, isn't it true that that their primary purpose, and when I say they, I know you just represent two of the the many folks down there selling t-shirts. But isn't the primary purpose to turn a buck, to make a profit?
[00:07:14] Dan Foley: My group has a number of purposes. Uh, one is to make a buck. Uh, two is to convey a message, uh three is to have their presence in organization known. Uh I have no doubt that there are t-shirts out there that have no message on them. I have no doubt even by the admission from one group that shall remain unnamed, uh that they have no pretense that it's First Amendment, but taking advantage of the situation to make money. So I think you'll find a a range of groups with a range of motives.
[00:07:44] Randall Roth: John, if if it were real clear that all of the groups there were were sincere and and if the t-shirts uh had a a clearly religious message on them, um you would say that that the city can regulate that, but cannot uh eliminate that.
[00:08:01] Jon Van Dyke: We have an obligation as a community to allow the dissemination of views. And we do in Honolulu, very generously allow people to engage in commercial activities that do involve dissemination of views. Uh the you you referred to our anti-peddling ordinance. Actually, it's a peddling ordinance because it's a very generous ordinance that allows peddling throughout our island except in eight uh specific locations. These are locations uh and involve the very scenic parts of our island, the Pali Lookout, the Hanama Bay and so on. And the Waikiki, uh special design district is included as well, as one of the eight areas that are excluded. Waikiki is uh uh less than one square mile, it's uh out of 625 square miles in our island. So it's a very small confined location. It's a location that is congested and it's also of a very great importance to us, historically and and commercially.
[00:08:59] Randall Roth: So you so you are are very much in sympathy with what Betty is saying.
[00:09:03] Jon Van Dyke: Definitely. I think that the uh aesthetic interests are are paramount. Waikiki is a place of romance and magic. It it was a place that historically uh the ali'i chose as their their special retreat and uh for many people throughout the world, it's had a uh very important meaning. They've come here for their honeymoons, their their romantic periods, their special vacations. and and we have an obligation to maintain that that sense of um [unintelligible — audio glitch] wonder that Waikiki brings to us. It's songs about it. The it's a it's a wonderful place.
[00:10:00] Randall Roth: So so you're basically in disagreement with City Prosecutor Keith Kaneshiro, who's who's refused to enforce the current ordinance because he feels that it um is unconstitutional based on that Ninth Circuit opinion, you would disagree with that. You would say that he does have the power within the constitution currently to get the vendors off of Kalakaua at least, if not out of Waikiki entirely.
[00:10:25] Jon Van Dyke: Yes, definitely. The the peddling ordinance is a content-neutral, uh ordinance, that's uh reasonable in light of the circumstances. And, uh, we have, uh, the administration has provided an alternative site within Waikiki for the vendors. This is a municipal parking lot, uh, on Kuhio Street between Lewers and Ka uh Kaiolu. It's only one block away from Kalakaua. It's a perfectly good site, uh, that plenty of pedestrian traffic there. Uh, people would quickly learn that that's where you can get the cheap t-shirts if that's what they want. And so, it's a it adds yet another alternative to the alternatives that are that are already available.
[00:10:43] Randall Roth: Let me ask Betty, uh if the t-shirt vendors were simply moved, if they were uh not right there front and center on Kalakaua, uh would that be acceptable to you or do you feel that they simply shouldn't be right on the sidewalks uh any place where people gather?
[00:11:00] Caller: Well, I it might be acceptable to me because I might not have any occasion to go to those side streets. But I pity the people. Uh, you know, who are in that area. And [unintelligible — audio glitch] did want to say, um thank you very much for coming back to me. In response, uh I'm not even sure I called you before I heard who it was the person who answered me last when he said one, two, and three. Number one, to make a buck. Yes. Well his answer, well number one was to make a buck, number two was to make a buck, and number three was to make a buck. But he he just used a lot of words uh with different uh uh descriptions of number one, two, and three. But if he remembers what he said, I say all three were to make a buck and and also this is tax-free. And again, uh the religious expression, it was Yeah. Uh and I I think the artists who who display their art along the zoo fence, that has been a tradition for [unintelligible — audio glitch] years, and I think they would resent it would be terrible to to allow these vendors to to go up there.
[00:12:06] Randall Roth: Betty, um in in defense of of Dan I want to read to you something from this Ninth Circuit uh opinion. It says the Supreme Court has held that fundraising for charitable organizations is fully protected speech. Additionally, it is held that an expressive item like a t-shirt does not lose its constitutional protections because it is sold rather than given away. So, while the lawyers who I think are debating some of the finer points, um the fact that they have a motive of of making a profit, uh at least according to this Ninth Circuit opinion doesn't seem to be um uh reason alone to kick them off the streets. Betty, I I've got another caller on the line. I really appreciate uh your interest. Well, Mahalo Mahalo Mahalo, and Mahalo again, and and I but I still think the citizens' rights have been violated and are being violated terribly and thank you very, very much and good luck.
[00:12:59] Randall Roth: Thank you, Betty. We have a another caller on the line. Um I don't have your name, are you there?
[00:13:05] Caller: I am here.
[00:13:06] Randall Roth: Wonderful. What do you have to say today?
[00:13:08] Caller: Uh, in relation to the Molokai school song, uh note the third verse of the national anthem In God Is Our Trust. The Pledge of Allegiance in 1954 Congress put uh I can't remember right at the moment the In God, and all of our money, In God We Trust. I'm not on either side of this, I just wanted to make the point.
[00:13:30] Randall Roth: Okay. Let me ask our guest, John Van Dyke, who's a professor from the University of Hawaii Law School, to tell us uh a little bit more about the the context for this comment. Uh, I'm sure it has to do with that song, uh by the name Friends, that uh several graduating classes this year wanted to sing. Can you tell us why that's a First Amendment issue?
[00:13:51] Jon Van Dyke: The First Amendment protects our right to speak freely. It also protects our right to uh practice our religious religion freely, and as a component of the religious freedom, it prevents the government from establishing a religion. This concept of establishing the religion has many components. It [unintelligible — audio glitch] covers more than just uh whether the government can establish uh say the Baptist Church as the official religion of the United States. It also prevents the government from favoring one religion over another religion or even favoring religion over non-religion. So, um the Supreme Court has said that we could cannot permit prayers in schools, we cannot uh permit uh uh invocations at graduation ceremonies, uh things of that sort. And the Attorney General issued an opinion saying that this this song Friends, should not be sung at graduations because it does invoke the the name of the Lord.
[00:14:49] Randall Roth: So, it wasn't just the Department of Education. The Attorney General of the state said, this shouldn't be a a part of the formal program?
[00:14:55] Jon Van Dyke: That's right.
[00:14:57] Randall Roth: Uh, caller, are you still there?
[00:14:58] Caller: Yeah, I'm still here.
[00:14:59] Randall Roth: Uh, you're not convinced?
[00:15:01] Caller: No, because you've got it, um, in God we trust on everything in this country. Uh, I think every every religion has their own God.
[00:15:11] Randall Roth: Let me ask uh Dan Foley, former ACLU legal director. What do you think?
[00:15:16] Dan Foley: Well, these are not always easy calls. I've had some success and some failure arguing uh establishment type cases, the the phrase that John referred to that mandates separation of church and state, and basically have to go through a three-part test, whether the the whether there's a secular purpose, whether uh religion is either advanced or inhibited and whether there's excessive entanglement between government and religion. And different people have different opinions. I litigated the Good Friday legal holiday, a legal holiday in this state that subsidized $8 million a year and it's only a legal holiday of some religions. So I Let me guess, you were arguing that that shouldn't be a holiday. That's right. It was clear in my mind, uh that it violated the establishment clause, that it had a a [unintelligible — audio glitch] religious purpose, that it it advanced religion. And I was proved wrong uh by the Ninth Circuit Court of Appeals. So it's not always easy to see and this particular friends issue, I don't know what John's view is, but uh I think reasonable people can disagree whether it violates the establishment clause.
[00:16:22] Randall Roth: Okay. Caller, do you have any uh specific question?
[00:16:25] Caller: No. No, I don't have any. I appreciate it and thank you very much.
[00:16:28] Randall Roth: Thank you.
[00:16:29] Jon Van Dyke: Can I can I give my opinion since Dan doesn't know what it is? Professor Van Dyke, what's your opinion on this song? Uh, right. The song, um mentions the name of the Lord in uh one of its verses uh on two or three occasions, in the midst of a a song that's generally about good fellowship and the value of friendship. So it seems to me that it it could be uh accommodated uh as part of a graduation ceremony because the the focus really is not is not on religion. The religion is rather an incidental uh element of it. We have an opinion from the US Supreme Court um involving nativity scenes, which uh people characterize as the three reindeer rule. The uh court has allowed nativity scenes to be displayed as long as there's other material relating to Christmas that's also in the display, as long as you have reindeer, Santa Claus, elves, things of that sort. And a nativity scene can also be part of that scene, the overall scene. But an isolated nativity scene is not permitted because that gives too much focus on religion. So if there's an an incidental mention of of God or or the Lord, as part of a uh a larger situation, I think it probably can be permitted. Our pledge of allegiance, of course, mentions uh under God. Uh we have the word God on our coins. So we do allow that in many other situations.
[00:17:58] Randall Roth: You're listening to the Price of Paradise Radio Show. I'm Randy Roth, and my guests this week are John Van Dyke and Dan Foley. Dan used to be with the American Civil Liberties Union, known to many as the ACLU, successfully argued the same-sex marriage case, and currently represents several of the organizations selling t-shirts on the sidewalks of Waikiki. John Van Dyke is a professor at the University of Hawaii School of Law, who currently is helping the city of Honolulu in its ongoing battle with Dan's clients and other sidewalk t-shirt vendors. Your calls are welcome and and phone lines are open. The number to call is 955-8821. Again, the number is 955-8821 and neighbor islanders are invited to call collect.
[00:18:42] Randall Roth: Well, we have a call from Molokai. Maria, you're on the air.
[00:18:46] Caller: Uh hello.
[00:18:47] Randall Roth: Good morning.
[00:18:48] Caller: Good morning. Maria Hutus from Molokai E about the t-shirt vendors. Uh I realize that the Ninth Circuit Court has spoken. However, I have not heard anyone speak of a US Supreme Court decision where things can sometimes be reversed. It seems to me that having read that there is unlimited freedom up to a point but you cannot call out fire in a crowded theater. There seemed to me, it seems to me some aspect of the situation on Kalakaua, which I had an opportunity to see when I was in Honolulu recently before and after, that the, the density of the people begins to present a health problem. I would like to know how long it would take and what the opinion of both of the gentlemen is as to what the possibility might be that this decision could be changed in some way, if it were to go to the US Supreme Court.
[00:20:02] Jon Van Dyke: Let's ask Professor John Van Dyke to respond to that, Maria.
[00:20:05] Caller: Thank you.
[00:20:06] Randall Roth: Thank you, Randy, and thank you, Maria. Uh, it's a good question. The US Supreme Court has has never, uh, protected active commercial merchandising in public property. So that the Ninth Circuit decision, which Randy referred to is, uh, in my judgment, inconsistent, quite inconsistent with the prevailing US Supreme Court decisions. And in fact, there are four recent US Supreme Court decisions that make a clear distinction between collecting money on the one hand and disseminating literature or views on the other hand. Uh, so that, uh, yes, solicitation of money is is protected, fully protected by the First Amendment, but that doesn't mean that you can do it anywhere at anytime. And certainly you cannot do it on public property. Some of these recent decisions have been quite eloquent about the burden that solicitation in public areas puts upon passers by.
[00:21:01] Randall Roth: If you're just handed a leaflet, you can take the leaflet, shove it in your pocket, throw it in the trash, read it later. It's it's not a real intrusion into your space. But if someone comes up and asks for money or tries to sell you something, then you have to either brush the person off, which might be emotionally difficult, or engage that person in some conversation, alter what you had intended to do with your time and space. And it's an intrusion into your privacy. So it's a bit different character, different caliber, and it is not in my judgment, protected by the First Amendment in public spaces.
[00:21:38] Jon Van Dyke: So you would recommend to test that case?
[00:21:42] Randall Roth: Yes, my recommendation all along has been that the Ninth Circuit decision is is incorrect as it's been interpreted and that we can challenge it, we we ought to be able to prevail in the lower courts, but certainly if we can get to the US Supreme Court, we will win this case.
[00:21:56] Jon Van Dyke: Dan Foley, you're on the other side of that issue?
[00:21:59] Dan Foley: The US Supreme Court last term accepted, I believe it was 1.3% of the cases, uh, that were petitioned to be heard. So it's not a court of appeals. So even if you have a good case and good argument, there's no assurance the court will accept that case. The Good Friday Legal Holiday, 13 states had Good Friday Legal Holiday, the US Supreme Court refused to hear it. And just this year, my firm was involved in a case where the Ninth Circuit Court of Appeals and a published opinion said, a writ of habeas corpus applies, there's a significant liberty interest when someone is sent to eight hours of traffic school on a DUI conviction. 40 attorney generals joined the attorney general of Hawaii asking the US Supreme Court to hear that case. It refused to do so.
[00:22:45] Jon Van Dyke: So you're saying the chances of getting to the Supreme Court aren't that aren't that high.
[00:22:49] Dan Foley: Statistically, it's very low.
[00:22:51] Jon Van Dyke: Okay. Maria, thank you very much for your call.
[00:22:54] Caller: One, may I add one more point, please? I noticed in uh I travel fairly frequently and I noticed in the airports, in many of the airports on the mainland, there's one person at the bottom of the escalator wearing a white uniform with a box but doesn't say anything and just hints if you wish to. So there seems to be some regulation that in airports, and uh so that was what I would like to say. One more point also, merely because there's a small statistical chance of not getting there, is not a reason not to pursue it to the Supreme Court. Thank you very much.
[00:23:28] Jon Van Dyke: Thank you, Maria. We have a number of callers on the line. Uh let's see, let's go to David from the Big Island. David, you're on the air.
[00:23:36] Caller: Yes, good morning. Um, I have a question regarding the First Amendment. Uh, when a person wants to speak before the county council, they are given three minutes and that's all. Uh, the developer, of course, is given as much time as he wants to speak, but the public can only limit their speech to three minutes speech to three minutes and I, is this an infringement on our right of free speech?
[00:23:59] Jon Van Dyke: That's a good question. I've never thought about that. Professor Van Dyke, do you have an answer for David?
[00:24:05] Randall Roth: People are free to speak in many different ways and in places and get their views before the county council. But in the meeting itself, there's a need to provide an orderly uh situation so that everybody has a chance to express their views. Uh anybody can submit written views at at any length, but I think the three minute rule uh is a necessary rule, given our Sunshine Law, which does allow everybody the right to appear before the the council. If we didn't have the three-minute rule, um, the council would never be able to get to its votes and and make decisions.
[00:24:39] Jon Van Dyke: David, I guess my personal test is that if the ACLU won't take it, then you probably wouldn't have a chance. What what our former ACLU attorney, Dan Foley. Um, what do you think of David's concern?
[00:24:51] Dan Foley: I concur with John on that one. I think there is uh alternative channels of communication. You also have the right under the First Amendment to petition your government which anyone can do, but that doesn't afford you a particular time frame within their chambers.
[00:25:05] Jon Van Dyke: David, I think that means you're stuck with three minutes.
[00:25:08] Caller: Okay, thank you very much.
[00:25:09] Jon Van Dyke: Thank you for your call.
[00:25:11] Caller: Right.
[00:25:11] Jon Van Dyke: We have uh another caller, Carol from Honolulu.
[00:25:16] Caller: Actually that's Cal from Honolulu, but that's all right.
[00:25:18] Jon Van Dyke: All right, Cal, you're on the air.
[00:25:19] Caller: My question is um with regards to the T-shirt vendors and I guess we're beating this to death, um so we can beat it more. Why can't the city get rid of the vendors that are making, as was mentioned earlier, no pretext whatsoever of giving out a message? If a T-shirt doesn't have a message and the seller isn't perveying a message to the public, why should they be allowed to have a T-shirt stand uh along with the people who are giving us a legitimate message? Maybe the city ought to go after it that way.
[00:25:51] Jon Van Dyke: That's a question I've been wondering myself. If there's a happy face with a have a nice day written under it is, is that uh a message? And if there is no pretext whatsoever, how can it be protected then? John Van Dyke?
[00:26:04] Randall Roth: The problem is determining what is a legitimate message and what is not. And we don't want, I don't think, our police officers to have to make that very difficult subjective judgment. So the position I've been recommending and the the administration has been putting forward all along is to have a clear per se bright line as to where you can sell and where you cannot sell. Because otherwise you get into this incredibly difficult uh uh situation of line drawing. Uh let's just uh think of what a a message might be. Uh does it have to be even something in writing? Uh symbols can be messages. Symbols can be very powerful messages. Uh and uh some people understand certain symbols in one way and other people don't give them any meaning whatsoever.
[00:26:51] Randall Roth: Uh pictures can have messages. Um um a beautiful picture of uh Diamond Head is a message in many people's mind. So what what is is non message-bearing? What is inextricably intertwined? These concepts are very, very difficult and elusive. And I think we would get ourselves in much more difficulty if we tried to decide what is a legitimate message and what is not.
[00:27:17] Dan Foley: Well, if you were to enforce uh the peddlers ordinance against um T-shirts where you have the opinion there was no message, you'd essentially end up where you are on pornography. Not so much in this state but other states. I know it when I see it, people disagree. And essentially that's what's been done, uh when we did have pornography uh prosecutions here because pornography is not protected by the First Amendment. So if it was pornography it had no protection, you could arrest and prosecute and convict. You had juries going different ways on the same book, same magazine, some finding it within the First Amendment, others not. And if that were to be done on T-shirt, I'm sure we'd find the same experience.
[00:28:01] Randall Roth: I think Dan and I just agreed that that it's impossible to enforce a uh subjective legitimate message uh criteria. And uh I hope that Dan after further consideration will also agree that the only real approach is to have the peddling ordinance enforced in a a non-discriminatory uh content-neutral fashion.
[00:28:25] Jon Van Dyke: Uh Cal, I wanted to go to you, but we've got a real hot one here, so I'm going to go to Dan Foley first. Well, we wouldn't agree on enforcement of the peddler's ordinance. That's in court where it should be, and we'll get a decision at sometime at some level. Where we would agree, however, is that the situation in Waikiki is out of hand and reasonable time, place, and manner regulation is in order and we would support some ordinance out of the uh City Council. None that are pending but but some ordinance.
[00:28:51] Caller: Okay, Cal is, what do you think? Well, I think I just, uh, managed to stumble on agreement among both of the uh principals there. So I guess I'm happy.
[00:28:58] Jon Van Dyke: Oh, thanks a lot. I appreciate your call. Uh, we have some other callers on the line, but first I just want to remind you that this is the Price of Paradise radio show. We are live and our phone lines are open. The number is 955-8821. you've been waiting for a while. Uh next is Ed from Kaimuki. Ed, you're on the air.
[00:34:40] Caller: Uh thank you. Um, I have a possible solution from the city's point of view and you may have to read between the lines as to what I'm saying here to get what what I'm saying. A suppose the many more similar vendors were to spontaneously, and I put that word in quotes, spring up there, crowding the sidewalk and creating a public hazard. Uh would the city then have the right to clear the sidewalk uh I put in quotes neutrally uh without likelihood of uh a suit being filed on whatever count?
[00:35:08] Jon Van Dyke: You've you've touched uh a raw nerve, Dan Foley just jumped. What do you think, Dan?
[00:35:13] Dan Foley: Well, I think um currently now, uh under what we've experienced in the last months, even without additional vendors, I think the city has a legitimate and reasonable interest to regulate the side sidewalks and to limit uh the placement and and size and and location of tables. I believe that the administration and council members may be recognizing that fact. The real debate is the number of tables and the location of tables and and that's the difficult area to resolve.
[00:35:44] Jon Van Dyke: So you're opposed to the the council approach that would say no tables whatsoever. You can sell what you can carry but no tables. And then you would also be opposed to to John Van Dyke's approach, which is you can have tables but not on the main thoroughfares.
[00:35:58] Dan Foley: That's correct.
[00:35:59] Randall Roth: John, any thoughts on this? Yes, uh I think the caller's uh perspective that we do have a obstruction situation is is true. What we were seeing uh before uh the third week of May is a proliferation of tables all along Kalakaua Avenue uh increasing in size and and density uh with no end in sight. Dan uh has always been the voice of reason and I said we can negotiate the some some reasonable solution to this and and Dan is a reasonable person, a good person, but the problem is that Dan doesn't speak for every potential seller. And that once you establish this right, there's no end to who may seek to take advantage of it.
[00:36:45] Randall Roth: Because uh let's face it, Kalakaua Avenue is probably the best merchandising spot on the whole planet. You have an enormous number of of people with some money in their pocket that are looking for things to buy to take home to their family and friends. So um we the T-shirt is just a tip of the iceberg and we're already seeing sarongs, we're we'll soon see hats, we'll see jewelry, we'll see watches. Uh there's no end to the ingenuity that the the merchandising community can come up with unless we're able to bring this to a halt soon and completely.
[00:37:18] Jon Van Dyke: So evidently Ed uh your message between the lines is is has been heard by others already because they're setting up shop or planning to set up shop down there I guess.
[00:37:27] Caller: Yeah, uh my point was that maybe the vendors who operate from inside the stores could now come out and help create this public hazard.
[00:37:38] Jon Van Dyke: Well, that's uh That's what I was suggesting.
[00:37:40] Caller: Yeah, kind of kind of like putting a bunch of trees in the way or something like that.
[00:37:43] Jon Van Dyke: That's right, very similar. Right. Well, if I could just give a bit of historical background, uh [unintelligible — audio glitch] people in the stores were selling on the sidewalk until recently. And at the time that the sidewalk was widened, the we the taxpayers of Honolulu just spent $12 million widening
[00:38:00] Randall Roth: and beautifying the Kalakaua Avenue sidewalk. And at that time, the city administration worked very hard to get the agreement of the vendors to bring their merchandise back into the stores. So that we would have this wide broad promenade, this kind of Champs-Elysees [unintelligible — audio glitch] Honolulu, where which would give visitors and residents alike a an elegant uh uh open space that would give them an introduction to Hawaii's beauty. And so, the the merchants in the stores feel very uh distressed that they were uh they basically agreed to do something that other people are now, they agreed not to do something that other people are now doing. And uh there's an enormous amount of uh bad feeling on this matter.
[00:38:48] Jon Van Dyke: And thank you very much for your call.
[00:38:50] Randall Roth: Thank you very much. Uh Pam on the Big Island has been waiting patiently. Pam, you're on the air.
[00:38:55] Caller: Thank you. I wanted to make a comment about the situation on Molokai with the song. I really feel that majority should rule, and if almost a hundred percent of the students really wanted this song, uh, that's a majority. And that the majority should rule when we have elections, there's always going to be the majority ruling. And the minority, uh those that that haven't won their their fight, you know, to have their elected official put in, are going to be very disappointed and perhaps some of them angry. But our whole national uh ethic is, you know, that the majority rule. Um, you know, if if I go to a place, a school, or wherever, and something is being um given uh in a theme that that I can't agree with, as long as no one is being drastically harmed, I can politely listen and uh have an interest in in what's going on, anyway.
[00:39:46] Randall Roth: Pam, let me ask uh Dan Foley, why it isn't that we simply wouldn't allow majority to rule on issues like these.
[00:39:54] Dan Foley: That's why we have the Bill of Rights so majority does not rule all the time. The uh case decided by the US Supreme Court just two years ago on invocation at graduation ceremonies, the court basically said that if if one or two students only at the graduation exercise objected to this this prayer uh at the ceremonies, that was enough to bring in the First Amendment and possibly the prohibition of that prayer at graduation ceremonies. So the Bill of Rights and the First Amendment really is an exception to the majority rule that uh underlines so much other parts of our democracy.
[00:40:32] Randall Roth: John Van Dyke, do we have the possibility of another point of agreement here, or do you see it differently?
[00:40:38] Jon Van Dyke: No, I agree completely with Dan on on this. We do not want the majority to rule when we're talking about something so basic as people's beliefs. We do not want the government to be able to coerce a point of view that will uh inhibit uh the belief system of any of our citizens. There is a distinction that has kind of emerged between um minors, students, and adults. So we we seem to permit the government to do a little bit of uh coercion with regard to adults because we don't think that they're susceptible to the same kind of coercion. So that we have permitted for instance uh uh chaplains in the military and and chaplains giving invocations in legislative bodies because uh there really isn't a clear rationale, but the it seems to to be that the adults just don't seem to be as susceptible to coercion as as people who are minors whose whose views are still being formed.
[00:41:37] Randall Roth: Pam, what do you think of those answers?
[00:41:39] Caller: Well, I think if the students had all wanted a certain preacher or priest or whoever to come in and and give a a message of some sort, you know, then of course, you know, that should be held back. But such a simple little thing that all the students wanted, you know, in regards to the song, um, I still just feel the majority should rule in in that type of situation.
[00:42:00] Randall Roth: Mhm. Well, and I think earlier John Van Dyke, you were saying that uh that you didn't see any harm in in that particular song.
[00:42:07] Jon Van Dyke: Right, I didn't see this harm as as particular. This song is particularly coercive. Uh it it's um it's a pleasant little song. Uh uh there are other songs that could have been chosen. I'm particularly myself a fan of a song also called Friends that the the Beaver Brothers wrote a few years ago. There's a lovely song for graduation.
[00:42:26] Randall Roth: Pam, thank you very much for your call.
[00:42:28] Caller: Thank you.
[00:42:29] Randall Roth: Uh I'm going to go to uh to another caller in in just a moment. Carla, hang on the the line. I just want to remind our listeners that this is the Price of Paradise Radio Show. We are live and our phone lines are open. The number is 955-8821. Today's topic is First Amendment issues that touch our lives and with me in the studio are two well-known constitutional law experts, Dan Foley and John Van Dyke. Well Carla from Kaimuki, you're on the air.
[00:42:56] Caller: Yeah, hi. I don't know so much that I have a question, but I do have a comment. Um one of the things that I I noticed the other day on the front page of the newspaper, there was a photograph of kind of a an assortment of some of the designs that are being sold down there. And from what I understand, I could be wrong, but from what I understand, your your client Dan Foley are um kind of religious groups, um more on the, I don't know, I just kind of call it the Krishna side. One thing that might be considered in um can you hold on a second?
[00:43:28] Randall Roth: This is great. This is live radio at its best. Uh while we're waiting Oh, I'm here. I'm here. I'm just I don't like to public speaking and I even I just as much hate to talk on the phone and I'm out of breath.
[00:43:39] Caller: Oh, okay. I thought maybe Maybe it's easier for you guys, but it's not. thought you had something on the stove or something. No, no. Go ahead. Um the comment is that maybe in drafting this this language, maybe there should be an emphasis on whatever the religious, the by-laws of that that religious group or freedom of speech group or whatever they want to be called, um nonprofit organization within the by-laws, a description of what their intent and purpose is, uh to be printed on the shirt. Um and predominantly so. For example, I noticed in that photograph, there were any number of save Hanauma Bay, save this, save that. And I don't, to my knowledge, know that they have done anything towards towards saving those bays or um having anything to do with donating money to organizations which specifically are set up and have for years worked very diligently and um without pay to to uh to save Hanauma Bay or save Diamond Head Beach or like uh the Sierra Club Legal Defense Fund or whatever.
[00:44:46] Caller: And it seems to me that not only are they hiding behind the constitution or the First Amendment rights, but they're also hiding behind legitimate legitimate things that are occurring in in the environmental movement. And um maybe there could be something written into that law that would protect or or [unintelligible — audio glitch] make them stick to whatever their by-laws are, whatever their message is, and like um save Krishna or whatever it is.
[00:45:12] Randall Roth: Let's ask Dan Foley to tell us just a little bit about your clients and whether you think the other folks selling t-shirts and items on on the streets of Waikiki, whether they're quote legitimate non-profit religious organizations or not, Dan?
[00:45:26] Dan Foley: My certainly are. I can't Oh, no, no, I wasn't questioning that at all. I was saying that whatever their intent and purpose of their organization is, it have like 50 or 60% predominant display on the t-shirt.
[00:45:37] Randall Roth: What do you think, Dan?
[00:45:38] Dan Foley: One, the the articles and by-laws of my organization are on file and are public documents. I I think there may be a problem though if you try to enact an ordinance uh requiring a certain message to be placed on uh a t-shirt, then then we may not have a a content neutral uh type ordinance. I think what the administration is trying to do, what various members of the city council are trying to do is although we disagree with all the proposals in the right direction, and I think John and I would have some agreement on this peddler's ordinance aside for a moment, that if you really want to to restrict the activities you of the t-shirt vendors in the Waikiki special district, it's really more uh limiting the the uh placement and and location of tables, rather than trying to look at the sincerity of a particular organization or require a particular message to be uh printed or to see whether they're successful or not in in uh carrying out their message or what they do with their money.
[00:46:38] Jon Van Dyke: John Van Dyke, do does Carla's concerns, does that go to what you were saying earlier about the the difficulty of having the police there on the front lines making subjective calls? Yes, I thought her comments were very uh useful and and uh um insightful about what the problem we're dealing with here. But uh Dan's also right that we don't want the government to be saying that some organizations are more legitimate than other organizations and uh just because an organization um hasn't worked in fact to help save Diamond Head or Hanauma Bay, doesn't mean that they can't uh voice that very important uh concept that we should say those lovely landmarks. So, um the First Amendment protects all the organizations, those that are that are more sincere than others, uh those that are less sincere are also protected.
[00:47:29] Jon Van Dyke: But they're only protected in ways that don't interfere with other legitimate governmental interests. And the irony here is that here are organizations that are saying we should protect our lovely landmarks, and they're doing everything they can to destroy [unintelligible — audio glitch] very important uh community resource, our beautiful Waikiki.
[00:47:48] Randall Roth: Carla, thank you very much for your questions.
[00:47:51] Caller: Okay, thanks.
[00:47:52] Randall Roth: You're listening to the Price of Paradise Radio Show. I'm Randy Roth, and my guests this week are John Van Dyke and Dan Foley. Dan used to be with the American Civil Liberties Union, known to many as the ACLU, successfully argued the same sex marriage case, and currently represents several of the organizations selling t-shirts on the sidewalks of Waikiki. John Van Dyke is a professor at the University of Hawaii School of Law, who currently is helping the city of Honolulu in its ongoing battle with Dan's clients and other sidewalk t-shirt vendors. Your calls are welcome and phone lines are open. The number is 955-8821 and neighbor islanders are invited to call collect. The number again, 955-8821. Well Betty from Kailua, I believe we talked to you earlier. You're back.
[00:48:37] Caller: Thank you so much. and and I was I I'll I'll turn you out and then hang up because you're nice enough to let me on again. I'm just reminded of the old days and I'm I want to ask Dan Foley if it's possible that if he thinks it's possible we can ever get back to this because of the disgraceful uh you manipulation now and the trash us off areas by and using the First Amendment as an excuse. The old days when there was an area for instance in Times Square, New York, where they had the anyone could get on their soap box, so that they still have it in other countries, I believe or other major major cities.
[00:49:18] Caller: Where they could get on a soapbox and give their message. Uh because I mean all the people involved know that they're not they're not giving a message, they're is and that's it. [unintelligible — audio glitch] we get Can we get back to those days and give an area where anybody can get on a soapbox and give their message that way. Thank you, and I'll get off the air.
[00:49:37] Randall Roth: Dan, I know you're very sympathetic to to Betty's concerns. Is there an answer? Is there a way that that everyone can come out happy in this situation? Is there I don't think so. There's no Hyde Park soapbox or some other way of dealing with this.
[00:49:52] Dan Foley: I don't think so. Um John may disagree. I think the city administration and the city council are in agreement in one sense. They want to give nothing to the t-shirt vendors that they're not required to do so by court. They they disagree on how far they can go and the courts ultimately will resolve that. I think if John were successful, uh going to the US Supreme Court or at some other level and having the Peddler's ordinance upheld, I think generally most people would be happy, uh not mine, but whether my people are happy or not is not a real concern to the policymakers.
[00:50:30] Randall Roth: The longer I listen to to this, the the more complicated it seems and the less optimistic I am about a quick and clear cut solution. John Van Dyke, uh do you see it differently?
[00:50:41] Jon Van Dyke: Uh well, I think that the solution has to be that we ultimately have to be allowed to enforce our our peddling ordinance because uh it's not uh a perfect solution in the sense that uh we're we're seem to we are seen to be not maybe as generous as we want to be seen to be. But the problem is that all the other alternatives lead to impossible situations. If we try to decide that some uh messages are legitimate, others are not legitimate, then we get into incredibly difficult subjective calls. If we allow certain parts of Kalakaua to be uh used by a certain number of tables, then we'll be inundated by groups that want to use those limited spots, and we'll get into enormous difficulty deciding who should get them and who should not get them.
[00:51:28] Jon Van Dyke: One one issue that people uh sometimes forget about, we we focus on non-profit groups, the Ninth Circuit's decision focuses on non-profit groups, but profit-making groups have First Amendment rights too. And there's no logical reason why a profit-making group wouldn't have absolutely the same rights as a non-profit group.
[00:51:46] Randall Roth: So Liberty House could set up shop on the sidewalks.
[00:51:48] Jon Van Dyke: Liberty House could set up shops uh uh shops uh selling t-shirts as long as they were message bearing, saying Liberty House is great, uh or Liberty House favors saving Diamond Head uh and those would be fully protected under the arguments that that Dan is espousing. Uh and um we can go beyond there. The the Dallas Cowboys can sell Dallas Cowboys uh hats or t-shirts, because that's a a point of view. Some people see it as a religion even.
[00:52:16] Randall Roth: On the sidewalk.
[00:52:18] Jon Van Dyke: On the sidewalk, on the sidewalk, under this point of view, definitely.
[00:52:20] Randall Roth: We have a a number of callers on the line. Uh let's first go to Bill from Maui. Bill, you're on the air.
[00:52:26] Caller: Yes, so this may be a little off the subject uh but I would like to ask uh Professor Van Dyke if he could give us any information about the lawsuit that's uh been filed by the Maui County Council against the legal administration regarding hiring attorneys.
[00:52:43] Jon Van Dyke: Okay. Uh this is not a First Amendment case, but it's a constitutional issue, a separation of powers issue. The um um mayor was sued in her individual capacity along with the County of Maui by uh a an employee who was terminated. It was a wrongful termination suit. The corporation council then informed the mayor that he foresaw possible conflicts between representing the county on the one hand and representing the mayor and the other named individual uh defendants on the other hand. And the corporation council then recommended that the mayor and the other named employees have their own attorneys. And authorized them to obtain their own attorneys at taxpayer funds uh at taxpayer expenses. The Maui County Charter is is quite clear in saying that when special council are to be hired, they're to be hired pursuant to uh authorization by the Maui County Council and it has to be a two-thirds vote and only for very important uh purposes.
[00:53:47] Jon Van Dyke: So the uh County Council decided that they wanted to enforce that uh restriction and brought this complaint against the the mayor uh and the um director of finance and the corporation council.
[00:54:00] Randall Roth: And and John Van Dyke, you obviously have an opinion as to which side is is correct in this because I believe you're you're one of the attorneys involved.
[00:54:06] Jon Van Dyke: Right, I'm I'm representing the Maui County Council in that case.
[00:54:09] Randall Roth: So you feel that the the mayor acted improperly. And and I don't want to get into a a an extended discussion, just so that the listeners know where where John Van Dyke is in this case. Yes. Okay. Thank you very much, Bill. We're going to get back to some uh First Amendment uh issues. We have uh Pat from Makawao. Pat, you're on the air.
[00:54:28] Caller: Yes, good morning. Um I called last week and um I'm glad Dan Foley is there because um uh there's a couple things I'd like to say and ask with relation to a men to a first amendment regarding our our Mayor Fasi who seems to be who's running for governor. Um [unintelligible — audio glitch] am not in favor of spending waste to me it's wasting time on the t-shirt vendors because to me it's a red herring. The it's such a it's such a thing when you in compared to the other things that Mayor Fasi could be uh putting his his energies on, especially since this is an election year. If he thinks that by spending time by exuding his his authority to have the um uh t-shirt vendors removed and then making such a big deal out of it, that people are going to get the impression like, my goodness, he really can get things going and maybe we should elect him as governor. Well, it's not a big thing. it has it it has nothing in relation to the rest of us who live in Hawaii.
[00:55:35] Randall Roth: Pat, uh let me let me twist that uh just a little bit, and rather talking about whether Mayor Fasi should be focusing on other issues, let me ask our guest to to talk just a little bit about uh the midnight Commando raid. Uh whether from from the standpoint of of accomplishing something with this this difficult issue. Uh was that a step in the right direction? Um uh John Van Dyke, you're involved in in trying to come up with a statute in ordinance that's going to deal with the t-shirt sales issue. Um bringing the the trees in, was that helpful or not?
[00:56:08] Jon Van Dyke: Uh I think it was a kind of an expression of some frustration. Um the the there is a long term plan for further beautification of uh Kalakaua and the rest of Waikiki, and and bringing in more foliage is part of that plan.
[00:56:23] Randall Roth: Okay, so you think in terms of the t-shirt sales it didn't necessarily improve the situation getting the the vendors off the street.
[00:56:31] Jon Van Dyke: It doesn't change the constitutional issues, but uh our position all along has been that the t-shirt vendors create an an obstruction uh problem uh traffic flow problem that does justify uh restricting their activities.
[00:56:46] Randall Roth: Uh Dan Foley?
[00:56:47] Dan Foley: As far as the legal case, I think the uh cement planters are basically going to be a non-issue and not be a factor in the way the court goes. Despite the fact that I do represent the vendors, I don't think I can
[00:57:00] Randall Roth: agree with Pat on this. I do think there is very much concern on the part of a segment of the public, particularly in the Waikiki area and the merchants against my clients. And that's why it's not only the mayor, but every single council member that is trying to propose something to restrict my client's activities. It is political, but of course, people run for election and and uh listen to the constituents and the constituents are basically opposed to my client's activities in this area.
[00:57:29] Jon Van Dyke: Add in anything else on on the First Amendment issue as opposed to what Mayor Fassi or the other candidate should be focusing their attention on.
[00:57:37] Randall Roth: Well, I I guess that kind of makes me move into number two is uh freedom of speech. Um, how, when does someone's freedom of speech uh spill over into infringing on the rights of someone else? And I refer again to Mayor Fassi uh um, appearing on the 700 club and uh talking about the evils of homosexuality.
[00:57:59] Jon Van Dyke: Okay. Um Dan Foley.
[00:58:01] Randall Roth: Oh. The mayor doesn't like like a lot of my clients apparently, but as far as the First Amendment goes, this is a messy area. This uh t-shirt vending issue in the handbill ordinance is is not the first time it's come up. We've had handbill ordinances uh litigated twice uh and the city council has yet to fashion one uh that can pass constitutional muster. We've had political sign ordinances overturned. Uh it seems that of all of our our rights as expressed in the Bill of Rights, the courts give most deference to the First Amendment, and it's not always easy for government to fashion a restriction on a First Amendment right that can pass constitutional muster. So this is a very difficult area to legislate.
[00:58:45] Jon Van Dyke: Thank you Pat for your questions.
[00:58:47] Randall Roth: Thank you.
[00:58:48] Jon Van Dyke: Uh we have a caller, John Doe, and I'm curious whether that's the real name or not. But John Doe from Black Point, you're on the air.
[00:58:54] Randall Roth: Oh, hello. That's not the real name. Right. I um It's okay. It's okay. I wanted to um to address uh there was a lady that had called up before with valid points. I believe her name was Carol. Um, and I wanted to to address to the listeners that the the uh she had said that um it was mainly [unintelligible — audio glitch] Krishna related thing for the vendors. Um, they really have nothing at all, nothing at all to do with the with the people that are practicing the the religion of Hari Krishna here. Um, there has been there has been people that have been confusing that, and I wanted to set the record straight that the people that are there out on the streets, uh selling their t-shirts, they're there to make their own independent buck.
[00:59:56] Randall Roth: They are not supportive at all of the Hari Krishna Temple or the Hari Krishna faith here, and I believe it gives a a very bad name and bad rap to the wonderful people at the temple.
[01:00:12] Jon Van Dyke: John, uh John Van Dyke has something to say about that.
[01:00:15] Randall Roth: Yes, just to say that we did receive a a letter from the Krishna Temple indicating that they disapproved of all this selling and wanted to disassociate themselves from it. Very good. I I just wanted to make sure that the listeners knew that because uh they might not know and I think it's an important point to be addressed and to be made clear.
[01:00:37] Jon Van Dyke: Thank you John Doe.
[01:00:38] Randall Roth: You bet.
[01:00:39] Jon Van Dyke: Uh we have a caller from the Big Island, Charlie. You're on the air.
[01:00:42] Randall Roth: Uh good morning.
[01:00:43] Jon Van Dyke: Good morning.
[01:00:44] Randall Roth: Here's a proposal. Why don't we privatize the sidewalks? Sell them to a non-profit corporation, who should have more ability to restrict uh access to them.
[01:00:54] Jon Van Dyke: Oh, you're serious? Dan Foley, would that uh frustrate your efforts?
[01:00:58] Randall Roth: Well, I don't think that's going to happen. That's not a practical solution, but the listener brings out a good point. The reason why we have uh such difficulty in resolving this issue is because sidewalks have been found to be traditional public forums and uh given great uh uh leeway in terms of the First Amendment activity that's permitted on them. That's not the case in terms of private property. If this were private property, of course, uh there would be much greater leeway, if not complete leeway to restrict or limit the activity.
[01:01:29] Jon Van Dyke: You go ahead Charlie, but don't forget who you're dealing with.
[01:01:34] Randall Roth: Midnight uh Marauder could uh sell them to anybody you just want to.
[01:01:39] Jon Van Dyke: In fact, I think he mentioned the possibility of selling the University of Hawaii at Manoa, so uh maybe that's possible. I don't know John Van Dyke, what do you think?
[01:01:46] Randall Roth: This is a proposal that has been kicked around quite a bit over the last year.
[01:01:51] Jon Van Dyke: It it really has selling the sidewalks?
[01:01:53] Randall Roth: Yes, uh or leasing the sidewalks it comes out in many different forms. But the problem is that if there's a public right of way, then there are free speech rights that attached to it, so that the selling or leasing to a private concern would not uh in any way change the constitutional questions.
[01:08:06] Jon Van Dyke: It's okay, Charlie?
[01:08:11] Randall Roth: Thanks a lot.