ACLU-Hawaii, never an organization to shrink from controversy, is running toward it these days, arms wide open. The event, perhaps the highest-profile gathering in the local chapter’s history, is November’s Asia-Pacific Economic Cooperation summit, drawing heads of state and other leaders from 21 nations.
It’s also going to draw protest, from groups with various reactions to trade proposals under review by the top brass. And that’s all fine with Vanessa Chong, who, after 27 years in the top chair, still loves ACLU’s civil-liberties mission: Defend the Bill of Rights.
Chong said preparations were jumpstarted by a recent case of a woman who all but bared her breasts in a protest of gender inequality in toplessness regulations. Police had tried to cite the woman, which ACLU challenged.
"That was a teachable moment for Hawaii because it brought to the ACLU’s attention possible concerns that maybe Hawaii and law enforcement are not quite ready for APEC, in terms of being respectful of First Amendment rights," she said. "But we had the luxury of time then. So that was actually good that it happened when it did."
Free speech is great, Chong said, but not chaos. To make sure protesters know their limits, as well as their rights, ACLU prepared a tool kit, printing 10,000 to start, outlining where constitutional protections begin and end. There’s also a "Know Your Rights" hotline for last-minute queries.
"We don’t want common sense to go out the window at APEC," she said.
QUESTION: Isn’t APEC a first for Hawaii, in presenting the likelihood of full-scale public protest and engagement?
ANSWER: Right. And what makes this different than so many other large gatherings — because Hawaii has had large conventions of various professional groups — is because this has been identified as a national security event. There are these layers of additional law enforcement protections and protocols that add concerns from the ACLU’s point of view because it contacts with the Constitution. … The most important issue right now that keeps bubbling up is the ACLU wants to ensure that the First Amendment has sufficient breathing room, in many spaces and in many places. So our legal team continues to assess whether the secure zones adequately protect the public’s rights to lawful protest and assembly. … That is something we’re still looking at. The communication channels are still open with the government, primarily through county lawyers. Our understanding is that the counties’ legal team is communicating with all the other governmental moving parts for APEC.
Q: Is it your sense that they’re closing off too many of the spots for protest within view of the APEC players?
A: Well, we’re still evaluating those secure zones … are those areas adequate and comply with the Constitution?
Q: What would make a site constitutionally compliant?
A: Does it provide meaningful access for the public to lawfully protest, and for messengers to be able to send their message to the intended audience? So proximity is an issue, and is that proximity meaningful? One of the negotiated settlements during ADB (the Asian Development Bank meeting in Honolulu in 2001) was that protesters would have access to part of a secure zone facing the convention center. It meant, however — but the protesters agreed — an added layer of security. But it was close to the convention center, it was space-limited and time-limited. But protesters were allowed to participate. So that provided reasonable accommodation. …
ACLU’s wish list for this event will be that all lawful protest will be allowed to occur; law-enforcement readiness will comply with the Constitution; people — the observing public, the participants, everyone — will be respectful of each others’ rights; and there will be no selective enforcement of the law. And Hawaii will rightfully earn their spotlight on the international stage, at least in terms of a democracy in action, which would be really beautiful, from our point of view. … What would worry the ACLU is if government starts to make moves to forcibly remove or detain people. That could cause problems with the Constitution. So for example, forcibly mandating that they go into certain spaces, or to be detained, based solely on their status of being homeless.
Q: What is the ACLU’s position on proposals before the City Council to ban personal property being stowed on city sidewalks?
A: The ACLU’s position on that has been that those proposals are clearly intended for one particular group only, and that group is individuals who happen to be homeless. … It’s only going to be enforced primarily against a marginalized group.
Q: Let’s say it’s a business that temporarily stows its inventory outside, and that impedes pedestrians on the sidewalk. Wouldn’t that interfere with the public right of access to use the sidewalk?
A: Certainly. And we’re not saying these rights are absolute, because it’s always a balancing test. But to the ACLU, these proposals are coming up purely because people feel there’s a problem with individuals who happen to be homeless and we need to fix that. So the fix comes in the form of a proposal that says, if we do that we can get rid of them and everything they bring and put on a public sidewalk, rather than perhaps dealing with the thorny and complicated and difficult underlying reasons why people are driven to homelessness in the first place.
So, these proposals are not new to the ACLU, they have been around for years. And their earlier incarnation was in the form of "loitering" statutes that pop up regarding Fort Street Mall or other public spaces where, as it turned out, when they tried to implement it, it was not instituted against individuals like you or I, who happen to sit on the bench and fall asleep, or had too much to eat or drink and are feeling not well and sit down. It is going to be selectively enforced against people who don’t look right, smell right, act right, who find themselves homeless, and that’s a problem for the ACLU.
Q: But isn’t it justifiable to have a law that says a sidewalk is public property and must remain clear?
A: As long as it’s enforced uniformly. And that can be a problem for many of these laws where the impetus for them is to get at a certain group.
Q: Isn’t the ACLU best known for advocacy for the First Amendment, rather than the Second Amendment or other parts?
A: The ACLU mission is to protect, and expand where possible, those rights guaranteed by the United States and the Hawaii constitutions. A lot of our work focuses on the most well-known areas, such as the First Amendment, or voting rights, or police practices, which tend to come under the Fourth Amendment regarding what is illegal search and seizure of one’s personal property. But it runs the gamut. Also, the First Amendment in terms of keeping the government and religion separate from each other in a free society.
Q: Do you think First Amendment rights are the most common intersect people have with the Constitution?
A: Yes. There’s a reason why it is the First Amendment. If all goes well with APEC, what we hope to see is really Hawaii taking to heart the nation’s and Hawaii’s rich legacy in the people having a voice regarding their government policies, whether you agree with your government or you don’t like what your government’s doing. Protest is part of Hawaii and America’s DNA, so to speak. So it’s natural that it’s first.
Q: What do you think is prompting public concerns right now?
A: Certainly Occupy Wall Street has sparked something.
Q: More so than, say, the Tea Party issues did?
A: Well, for us a lot of the requests for information have come from individuals since Occupy Wall Street took off. And then certainly APEC was always on the radar. The ACLU made itself available as a resource to government entities for over a year. Like Hawaiian time, right? Two weeks out: "OK, what are we going to do? Is it legal to do this, and we better call the ACLU … I don’t want to get arrested." And then we get a phone call.
That’s when we said, better set up that "Know Your Rights" line, because already we got several calls from people. Interestingly, there’s only been one group that’s formally requested a permit, and that’s World Can’t Wait.
But if you read the paper and go online, that has been popping up at East-West Center and other places.
Q: That reminds me: What’s your take on the University of Hawaii protest over the administration unilaterally deciding to put up "welcome APEC" signs"? The ACLU’s position on signage …
A: The more signs, the better. If it gets a robust debate going on a university campus as to the merits of APEC or not, that seems to us a perfect forum, a public university, where that should be happening.
Q: You would not say … ?
A: One sign over another? No. Not our issue. What the ACLU fights for is not to let government be the final arbiter of whose speech is allowed, or what group gets to have certain rights. No, the Constitution applies to everybody, whether you like them or not. No, it’s up to us as individuals to fight it out in the marketplace, or let our government officials know when they’ve screwed up on policy. …
Our job is to make sure government doesn’t overreach its powers.
