City Hall of Shame
Honolulu Hale ignores First Amendment Freedoms.

Robert M. Rees

August 8, 2001

The first thing to understand about the First Amendment in Honolulu is that most officials at City Hall, ranging from attorneys to councilmembers to the mayor, don’t like the idea. In fact, at the behest of the tourist industry, City Hall is engaged in a drive to circumvent its protections.
      Intrusions by City Hall into free speech have become commonplace, and have extended even to the arts. In 1996, for example, reportedly because Mayor Jeremy Harris disapproved, a Karen Hong painting featuring pages from a diary that used the word "fuck" was removed from City Hall (aka Honolulu Hale).
      In March of this year, when Honolulu Hale and the Honolulu County Committee on the Status of Women hosted an art show to help build awareness of women’s issues and disabilities, the city’s director for Culture and Arts, Peter Radulovic, allegedly had one of the pieces removed. Based on reports from those present, he found Daria Fand’s "The Last of the Believers" to be offensive, and objected to what the artist describes as "a fully nude woman in the position of the crucifixion on the cross. … The pose of crucifixion implies ultimate vulnerability."
      Radulovic denies any part in the removal, and says, "The organizers were responsible. I left it up to them. I think it had to do with dimensions."
      However, Susan Miller of the UH Center on Learning Disabilities, who was helping with the show, says it was Radulovic who was responsible. Because other paintings in the exhibit also featured nudes but weren’t exorcised, Miller concludes "that the city office of Culture and Arts feared Fand’s work would generate complaints from conservative religious citizens."
      The ACLU of Hawai‘i is considering a lawsuit on the grounds that once the city has turned Honolulu Hale into a limited public forum, it cannot then discriminate against viewpoints it doesn’t like.
      What’s most interesting about this incident is that it happened in spite of established law, and even in spite of the highly publicized and failed attempt by Mayor Rudolph Giuliani to cut off city funding to the Brooklyn Museum of Art in 1999. Giuliani did so on the grounds that Chris Ofili’s painting, "The Holy Virgin Mary," was "anti-Catholic." The ACLU of New York took Giuliani into federal court, and the court agreed that "the First Amendment prohibits the government from discriminating on the basis of viewpoint in providing arts funding."
      Yet, in spite of established law, the folks at City Hall seem persuaded that Honolulu, and especially Waikïkï, should be exempt from the First Amendment.

An Artist’s Rendering
The reason has to do with Mayor Harris’ vision for Waikïkï. Harris and the tourist industry have come to view Waikïkï as their own private mall, one that should offer "a Hawaiian sense of place" unmarred by messy exercises of free expression.
      Based on the frequent press releases from his Department of Planning and Permitting, Harris’ dream world resembles an artist’s rendering — done in the soft pastels of watercolors — where there are no unwanted intrusions. It’s a land where the grass, the fake-stone waterfalls and the heavy retaining walls never cause beach erosion, where the visitors never tire of the empty and sterile streets and where there are no handbills urging support of the Kyoto Protocol.
      The notion itself is wrongheaded. A stroll down Kaläkaua or Kühiö avenues, at night or during the day, indicates that the visitors enjoy the carnival atmosphere. Tourists realize that Waikïkï is not an isolated South Pacific atoll, and enjoy the action on the streets as much as they do the nearly naked people on the beach.
      The motivation behind City Hall’s wrongheadedness is profit. The retail outlets, hotels and the Waikïkï Improvement Association (WIA), a lobby comprised of 250 organizations, believe that unauthorized street performers, news racks for Honolulu Weekly, handbillers and other signs of First Amendment activity only discourage a good spending experience. Suppression of freedom is to Honolulu Hale and Waikïkï what cheap booze and pumped-in oxygen are to Vegas casino owners.

A Project at a Time
The attempt to curtail free expression in Waikïkï is not new. What is new is the methodical zeal, spurred on by the tourist industry, with which the elimination of First Amendment rights is now being pursued. The turning point toward this concerted effort was the T-shirt episode of 1994.
      The 9th Circuit Court of Appeals had ruled in 1990, in Gaudiya v. San Francisco, that the selling of message-bearing T-shirts to further a nonprofit organization’s objectives is protected by the First Amendment. By 1994, immune from Honolulu’s peddling ordinance, T-shirt vendors were flourishing throughout Waikïkï.
      The retail end of the tourism industry especially resented that religious nuts and mangy and hippie outsiders were taking a piece of their commercial action. The WIA launched an attack on the First Amendment, and ran a two-page newspaper ad linking free expression to crime: "For years peddlers, prostitutes and drug dealers have been assaulting people on the streets of Waikïkï."
      The WIA also got the state’s Department of Business, Economic Development & Tourism, then under Mufi Hannemann, to produce a 30-minute film, Jimmy’s Excellent Adventure. Among other things it compared constitutionally protected handbilling to prostitution.
      When the city, because of Gaudiya, was enjoined from enforcing its existing peddling ordinance against the T-shirt vendors, City Hall retained two professors of constitutional law, Jon Van Dyke of the University of Hawai‘i and Kathleen Sullivan, now dean of the Stanford University Law School, to represent the city.
      U.S. District Court Judge Harold Fong, while expressing great respect for Sullivan, ruled against the city. Two years later, however, the 9th Circuit reversed its own decision in Gaudiya, and upheld Honolulu’s peddling ordinance as applied to T-shirt vendors.
      This opened the floodgates for the sanitizing of Waikïkï. Later, testifying in court concerning his proposed limitations on street performers, Honolulu City Councilmember Duke Bainum recalled, "There was [the overturning of] Gaudiya, and then we took it a project at a time."
      As part of the project-at-a-time campaign, City Hall enlisted the help of Van Dyke and Sullivan by offering them lucrative contracts. Van Dyke has so far raked in fees of $75,000, and Sullivan is earning $500 per hour, with a cap of $100,000. Their sole assignment is to narrow the scope of First Amendment freedoms as they apply to Waikïkï.
      What’s happened since is that Waikïkï has become a laboratory for the shrinking of First Amendment freedoms. For example, on April 23 of this year, the local ACLU had to take the city and Corporate Counsel David Arakawa into federal court just to get a simple permit for a protest march against the Asian Development Bank’s convention in Honolulu. Arakawa, meeting the demands of the ADB and of the Hawai‘i Tourism Authority, at first denied a permit all together, and then tried to impose unconstitutional limitations as part of the conditions for a permit. On May 1, forced into it by the federal courts, the city issued a permit.
      Still pending in our state courts is Williams v. County of Honolulu, the ACLU’s suit aimed at a city ordinance, proposed by Bainum, to confine street performers to out-of-the-way places in Waikïkï. A decision by Circuit Court Judge Virginia Crandall is expected at any moment.
      In federal courts, on appeal to the 9th Circuit, is Mayor Harris’ attempt to limit the distribution of Honolulu Weekly in Waikïkï. The attempt originated as a result of efforts by the WIA and the Waikïkï Neighborhood Board to "clean up" the clutter of news racks. The city complied, and in the process the Harris administration saw an opportunity to punish Honolulu Weekly, which is often critical of the mayor, while pleasing the commercial interests.
      However, U.S. District Court Judge Susan Mollway, on March 28 of this year, issued a judgment that was mostly favorable to the Weekly. The city, led by Van Dyke and Sullivan, is appealing.
      City Hall is embroiled in other First Amendment limitations, ranging from its attempts to eliminate adult entertainment in the area surrounding the Convention Center ("Stripped Clean," HW, 8/1) to its renewed effort, led by Van Dyke, to prohibit Panoram peep show on Kaläkaua Avenue from providing closed viewing booths.

The Hard-Core Issue
At the center of most of these First Amendment disputes is a single, hard-core issue: What is the power of the city to pass regulations that impact on free expression in public forums?
      The distinction most crucial to this question is between content-based and content-neutral regulations. As Sullivan explains in her textbook, First Amendment Law, the distinction is "between regulations that aim at the content of speech and regulations that aim at some other, content-neutral interest, such as peace and quiet, the orderly movement of crowds, the aesthetic attractiveness of public spaces, or the economic competitiveness of an industry."
      Content-based regulations are subjected to strict scrutiny by the courts, and are presumed to be unconstitutional. The City Council, on July 24, considered but deferred a probably unconstitutional bill to establish a Convention Center Special District. One of Bill 67’s stated purposes was to "phase out" adult entertainment, a content-based purpose that on its face is unconstitutional.
      However, content-neutral laws that incidentally affect speech — decibel-level restrictions, quiet zones outside hospitals, no obstructions during peak traffic hours — can be constitutional. These content-neutral regulations are called "time, place and manner restrictions"; the name itself excludes the use of complete bans.
      When Sullivan argued the T-shirt vendor case in Honolulu for the city, she proffered that the key constitutional hurdles for time, place and manner restrictions come from the "canonical" decision of the U.S. Supreme Court in United States v. O’Brien (1968). In O’Brien, the court held that time, place and manner restrictions must further legitimate important government interests, cannot be related to the suppression of free speech and must be narrowly tailored to leave open ample alternative channels for communication.
      Unfortunately, Van Dyke, Sullivan and others are among those who now seek to convert the O’Brien tests from tough hurdles into camouflage for efforts to curtail free expression. With the help of Van Dyke and Sullivan, City Hall has adopted the phrase "time, place and manner" as a sort of litany whose mere recitation justifies excursions into First Amendment freedoms. As Councilmember Bainum is now fond of repeating, "The courts have ruled that time, place and manner restrictions are constitutional."

City Hall of Shame
Bainum and others who should know better have let themselves be taken captive by the tourist industry, and have combined to form a First Amendment "City Hall of Shame." To qualify for this pantheon, one must understand it is wrongheaded and dangerous to use the O’Brien standards as window dressing for unconstitutional limitations on free expression — but be willing to do so anyway.
      This criterion eliminates some likely candidates. Councilmember John DeSoto, for example, apparently has zero understanding of the issues, and once asked of the entire Council, "What’s wrong with banning street performers all together? I say ban it."
      Qualifying for the City Hall of Shame, besides Mayor Harris, are five who do understand that Honolulu should not be governed after the fashion of Disneyland, but who are, nevertheless, intent on doing so.

David Arakawa
Arakawa, like everyone at City Hall, has taken the oath of office prescribed by Section 13-118, of the City Charter, to "faithfully support the Constitution and laws of the United States of America." Yet, Arakawa served as point man in the city’s attempts to deny a march permit to those protesting the Asian Development Bank. He then tried to impose unconstitutional conditions on the protest. After he was forced to agree to a federal consent decree, he blamed all the delays on the lack of cooperation from the ACLU of Hawai‘i and its counsel, Brent White.
      Arakawa, to whom Van Dyke and Sullivan report, has demonstrated a capacity to see the facts in a way that justifies time, place and manner restrictions. For example, at a Hyatt Regency Hotel forum sponsored by the William Richardson School of Law and the WIA, Arakawa showed slides of Waikïkï, which he said provided evidence of the safety problems created by street performers. What most in the audience saw were shots of benign entertainment, and of a few people enjoying themselves.

Duke Bainum
Bainum is independently wealthy but — as a state representative for Waikïkï, then as a councilmember for Waikïkï, and now as candidate for mayor — has managed to incur a huge political debt to the tourist industry.
      Part of Bainum’s defense of his campaign against the First Amendment is to profess ignorance even of bills he has authored. When questioned in court last fall, Bainum in quick succession provided the following answers about his own street performers bill: "I am not knowledgeable enough to answer"; "I am not an attorney"; "I can only tell you our intent"; "We leave it to the courts"; and, finally, "I’d have to look at the law."
      As well as ignorance, Bainum has learned to cite the proper pretext. Again and again, in defense of his street performers bill, he has repeated various versions of the same anecdote: "Last night I went by on Kaläkaua Avenue in my car. I saw four Tahitian dancers dancing in front of the Hawaiian Regent, and I saw five people in the street. To me that’s dangerous."
      It is of significance, by the way, that Bainum always talks about Tahitian performers. The original version of his bill called for exemptions to the ordinance for Hawaiian dancers or others who promote "a Hawaiian sense of place." That is, Bainum was prepared to argue, and did argue (with the help of Van Dyke) that a sidewalk performance by Hawaiians is safer for pedestrians than a similar performance by Tahitians.
      When even Van Dyke was forced to acknowledge that the exemption portion of the bill was content-based, it was withdrawn. However, Bainum informed the City Council, "We have found a way around that [withdrawal.] Such exceptions will be performed on private property."
      Then, with a sly smile, Bainum asked Rick Egged, the president of the WIA, "Will the WIA continue to work with the city to facilitate use of private property?"

Rick Egged
Even though not an official member of City Hall, no one has more earned a niche in the City Hall of Shame than Rick Egged. He symbolizes the commercial interests who believe so strongly in free enterprise, but not one wit in free expression.
      Under oath, Egged has acknowledged the WIA’s close working connections with the City Council. In fact, with regard to the locations where street performers will be allowed, Egged stated, "We reviewed the localities, discussed them and agreed they were appropriate."
      Egged’s only disappointment with Bainum’s street performer ordinance was that it did not exclude jugglers, singers and other performers from public parks. Wrote Egged to the Council, "We are concerned that performances are specifically permitted [i.e., not specifically excluded] in public parks."
      Egged added a pretext which the competitive tourist destinations should use in their advertising: "Most of Waikïkï’s parks are grassy bermed areas whose concentration of foliage may not be a suitable or safe gathering place."

Kathleen Sullivan
The brilliant dean of the Stanford Law School and the author of a textbook on First Amendment law is so highly regarded that some cite her as a candidate for the U.S. Supreme Court. Earlier this year, she was talked about as a possible replacement for the retiring executive director of the national ACLU, Ira Glasser.
      Why, then, would Sullivan work with Honolulu to narrow the First Amendment?
      When she was officially hired on Nov. 15, 2000, after having worked for the city in the T-shirt vendor case, this reporter asked her to "comment, for publication, on why you have accepted this assignment, and on what you see in these [street performer and news rack] cases that sparks your interest." Sullivan declined to respond.
      Constitutional scholars who know Sullivan, including one who has worked with her at Stanford, seem disappointed in her involvement. It may be jealousy, but to some it appears she has put an easy $100,000, most of which can be earned over the telephone, ahead of principle.

Jon Van Dyke
Van Dyke, who teaches constitutional law at the William S. Richardson School of Law, doesn’t get much respect from his legal adversaries.
      For example, during a deposition of a former city employee in preparation for the news-rack case, Van Dyke objected "on relevance ground" to a question from the Weekly’s attorney, Jim Bickerton. Responded Bickerton, "Are you going to keep making a relevance objection after I have explained to you that they are all reserved, that it is not a proper form objection? Because if you are, I will just suspend the deposition. We will go get the order so we can keep you quiet, and I will be allowed to question my witness."
      Some believe that Sullivan was hired to bolster Van Dyke’s weakness, and city attorney Gregory Swartz has noted that Sullivan was brought in primarily to appeal Van Dyke’s lower court cases.
      One advantage that Van Dyke does offer is a willingness to supply the pretext necessary to justify time, place and manner restrictions. In fact, he seems willing to do so on demand. When the Council asked Van Dyke to add some language that would justify exemptions to the street performer bill for city-sponsored performers, Van Dyke, as if his saying so made it so, wrote, "The Council finds that the provision establishes a distinction between city-sponsored performers and private performers which is not based on the content or message of performances." (Later, Van Dyke withdrew this provision, and even pretended not to know where it had come from.)
      During the trial on the city’s misuse of news racks, Van Dyke actually argued that opening a coin-operated machine is safer for pedestrians than opening a noncoin-operated machine. (U.S. District Court Judge Susan Mollway specifically rejected this contention when she ruled, "To the extent the ordinance distinguishes between coin-operated and noncoin-operated dispensing racks, the ordinance is an improper time, place, and manner restriction.")
      There is some doubt that Van Dyke understands First Amendment law, and it may be because he doesn’t understand the First Amendment. During the trial on street performers, when ACLU counsel Brent White asked for transcripts of the public Council meeting that approved the hiring of Sullivan, Van Dyke whispered to attorney Swartz, "Should we turn that over to them?"
      Swartz pointed out to Van Dyke that the transcript is part of the public record.

The Remedy
Free speech has been taken captive by the tourist industry, and the City Hall of Shame, from Van Dyke to the mayor, are more than happy to support that.
      There is no easy rescue. The importance of tourism will not decline, the inclination of incumbents to please powerful constituents will not subside and the popular appeal of stepping on the First Amendment will not dissipate.
      The answer is for citizens to violate the offensive city ordinances at every opportunity, and to declare litigious war on City Hall. In the courts, at least, the concept of upholding the Constitution is still an accepted and legitimate argument.