The American Civil Liberties Union will seek the repeal of a city ordinance under which two University of Hawaii students, including a topless woman, were cited in Waikiki last month for illegal assembly.
The ACLU says it believes the law is unconstitutional.
On Monday, District Judge Faye Koyanagi granted a request by Deputy Prosecutor Jeffrey Albert for a month continuance to study what he called “the important constitutional and factual issues” raised by the citation.
The citation carries a maximum fine of $500.
Jamie and Tess Meier, a couple from Maui, held two protests, one outside Haleiwa Beach Park and one on a Kalakaua Avenue sidewalk, on Aug. 21. They held signs and circulated a petition advocating for gender equality as part of a nationwide protest, National Go Topless Day, an event to support women’s constitutional right to go bare-chested in public.
The pair, who are represented by ACLU and private attorneys, were cited for failing to obtain a city parks department permit for a meeting or gathering of two or more persons.
After an appearance in District Court, the couple’s attorney, Matthew Winter, said they had a right to protest on a public sidewalk, in a park or any other place without a permit. He described the police’s actions as “a message-based arrest.”
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“They wanted to stop it because of their message.”
“We think it is absolutely horrible to cite them for their protest in Waikiki,” said Winter. “They had absolutely every right to protest … and they were doing so lawfully.”
He added, “Two people were cited for a two-person protest. That is absurd.”
Winter and ACLU attorney Laurie Temple asked city Prosecutor Keith Kaneshiro on Friday to dismiss the charges because they believe the ordinance is unconstitutional. A spokesman for Kaneshiro said the prosecutor would not comment on the matter.
At a news conference in front of District Court, Temple added, “As APEC (the Asia-Pacific Economic Cooperation meeting) approaches and Oahu ramps up readiness, law enforcement is put on notice that using the power of the state to silence lawful protest will never be tolerated, whether it’s two people on a sidewalk or a thousand people in a park.”
Jamie Meier said he and his wife conducted a similar demonstration at Haleiwa Beach Park last year and were not cited.
“It was pretty tame,” Meier said of last year’s Haleiwa’s demonstration. “We did it for two hours. We held signs.”
At this year’s protest, said Tess Meier, who went topless to show her support for gender equality, “the police basically didn’t like what we had to say, didn’t like what we were doing.”
Winter added, “Just because the message here was toplessness, this doesn’t mean the police can shut down a protest based on the message. Regardless of the message, people have the right to protest.”
The annual demonstration is in honor of Women’s Equality Day, which commemorates the 1920 passage of the 19th Amendment to the U.S. Constitution granting women the right to vote, organizers say.