Little did Justin Guy know that holding a sign that read “Homeless Please Help” on a Kailua-Kona street corner would spark a free speech case resulting in changes to the law that protects everyone’s First Amendment rights on Hawaii island.
The American Civil Liberties Union of Hawaii Foundation and the law firm of Davis Levin Livingston announced Monday it settled a lawsuit with Hawaii County challenging portions of the County Code that prohibit individuals from holding signs asking for help.
The settlement required the Hawaii County Council to amend seven different subsections of the Hawaii County Code, including laws that unconstitutionally restricted solicitation, which is protected by the First Amendment.
“The law in this area is always evolving,” Corporation Counsel Molly Stebbins said by email Monday. “The settlement agreement ensures that our County Code is consistent with applicable case law, and we believe the amended provisions strike the proper balance between First Amendment protections and public safety concerns.”
Guy’s attorney, Matthew Winter, said the case had a positive outcome on his client’s life.
“I think he was someone who was on the fringe of society,” Winter said. “He saw during this case people really listened to him. He made a challenge, which went all the way to federal court and was able to change the law, not just for himself, but for the Big Island. He felt good about this.”
Guy, who is in his 20s, moved back to Colorado in June and was enrolling in community college, Winter said.
“The County of Hawaii should treat homeless people with dignity, and recognize that we have constitutional rights — including the right to free speech — just like everyone else,” Guy said in the ACLU’s news release.
The ordinance went into effect June 12, Winter said.
On June 3, 2014, a police officer cited Guy for holding the sign on Kaiwi Street, which violated Hawaii County Code Sec. 14-75, enacted in 1999, prohibiting solicitation for money in a wide range of public places in the county. The criminal charges against him were later dismissed, and a lawsuit was filed to protect free speech rights, guaranteed under the Constitution, for people in Hawaii County.
In late 2014, U.S. District Judge Susan Oki Mollway issued a temporary restraining order prohibiting the county from interfering with Guy’s right to hold a sign by the side of the road. She found Hawaii County Code Sec. 14-75 violated the right to free speech.
“The right of free speech applies with equal force to an unsheltered person asking for help as it does to a politician asking for votes,” said Winter. “The government cannot suppress speech it does not like.”
“We know that there were people waving signs right where Justin Guy had been,” Winter said. The law was “extremely over-broad” and could have applied to politicians sign-waving, Girl Scouts selling cookies and political protesters, but there is no evidence it was equally enforced, he said. “Over-broad laws can cause selective enforcement,” he said.
Winter said the intent of the law was to stop aggressive panhandling and intimidating behavior in public spaces, but the law that was passed applied to all types of solicitation and speech that could occur on sidewalks.
As part of the settlement, Hawaii County repealed multiple provisions in the County Code that criminalized solicitation and begging, and it will pay $80,000 in attorneys’ fees and costs, and damages, the ACLU said.
Stebbins said that portions of the laws at issue (HCC 14-74 and 14-75) were enacted in 1999, and other provisions (Chapter 15) were enacted in 1975.
The county also fixed other provisions in the code dealing with free speech and protests. Groups of fewer than 75 people no longer need a permit to hold free speech activities in county parks; groups 75 and larger may hold free speech activities in county parks without having to obtain a permit 20 days in advance, by simply notifying the county of the planned demonstration.
And offensive speech is no longer a crime unless likely to provoke a violent response, which is not protected by the First Amendment.