State and federal courts have ruled time and again that authors and publishers of tourist guidebooks cannot be held liable for the injury or death of their readers. A bill floating in the Legislature would give readers false confidence that writers and publications could be held accountable in such cases. A Senate committee should reject the House-approved threat against the travel media after hearing testimony today.
Landowners, the tourism industry and the Abercrombie administration are backing the proposal to require publishers to warn the public of an area’s dangerous conditions "if the conditions pose a risk of serious injury or death." Furthermore, the bill would require publishers to defend and compensate the landowner, private or state, in the event of a lawsuit.
Proponents of the bill cited a publication that suggested that hikers walk around an opening beside a gate that "has an ancient, scratched out and disregarded ‘No Trespass’ sign" to reach Kipu Falls on Kauai. Another guidebook asserts that a land company’s posting of such signs "hasn’t stopped locals" from crossing on private property, adding, "Regardless, we’ll just tell you where it is and leave the rest to you."
The state Department of Land and Natural Resources supports the bill. The attorney general did not submit testimony, for good reason.
First, the bill is an extreme departure from constitutional law and would not stand up in court. Since a landmark First Amendment case in 1964, the U.S. Supreme Court and lower courts have strongly protected publications from lawsuits resulting from injuries blamed on what people have read.
The 9th U.S. Circuit Court of Appeals, which has jurisdiction in Hawaii, rejected in 1991 a lawsuit brought by two mushroom enthusiasts against the publisher of "The Encyclopedia of Mushrooms." They had become critically ill and required liver transplants because mushrooms they had eaten were deemed in the book to be safe to eat. A year later, the Hawaii Supreme Court ruled that Fodor’s Travel Publications could not be blamed for the injury of a Texas honeymooner by failing to warn him about dangerous conditions for bodysurfing at Kauai’s Kekaha Beach.
Second, the proposal is astonishingly broad and open-ended. The liability of authors and publishers could extend to various websites and online search engines, old editions of books still in circulation and non-tourism publications, like coffee-table books. Holding a publisher or author liable for what he cannot control — a reader’s poor judgment or reckless behavior, for instance — is beyond absurd. And requiring publishers to warn of conditions that "pose a risk of serious injury or death" is unacceptably vague. Even the most family-friendly beach can be deadly to a unsupervised toddler. The chilling effect of such a law would be to discourage the publication of travel guides altogether. How is this good for the tourism industry?
The bill before the Legislature is not entirely useless. A section would create a task force to identify and assess Hawaii lands featured in visitor guide publications or websites and that may be dangerous. It also would make recommendations discouraging trespassing to gain access to remote or scenic destinations. That sort of information would be helpful to tourism media as well as the visitor.
Throwing down the gauntlet to travel publications by demanding that they sterilize their content or risk a court battle is not the way to encourage tourism that strays from the beaten path.
The state can address the concerns for the safety of tourists and rights of landowners without stifling free speech — or trampling on the fundamental rights provided by the First Amendment.