Prior Restraint

Groups Oppose Veto of Bill To Limit Governor’s Power To Cut Off Electronic Media

In the aftermath of the Hawaii Wildfires
Hawaii’s Governor Josh Green listens during a press conference about the Maui Fire in Kahului on Maui island, Hawaii, Aug. 12, 2023. (Reuters/Mike Blake)

By Honolulu Civil Beat via The Associated Press

A local media watchdog, a TV and radio trade organization and a nonprofit that promotes government transparency are each expressing serious concerns with one of the bills Hawaii’s governor has threatened to veto.

House Bill 2581, currently awaiting action by Gov. Josh Green, would take away the ability of a governor or county mayor to suspend electronic media transmission during a state of emergency.

The bill specifically cuts these words from Hawaii law regarding a governor’s or mayor’s powers during an emergency: “to the extent permitted by or under federal law, suspend electronic media transmission.”

The Big Island Press Club said that HB 2581, if signed into law, will ensure “a reasoned and balanced measure” that satisfies the public’s right to know while acknowledging emergency management agency concerns.

The Hawaii Association of Broadcasters said the statute as currently written is unconstitutional and represents “prior restraint” or censorship. The First Amendment prohibits abridging freedom of speech and the press.

And, in a letter to Green Thursday, the Public First Law Center said state law already grants a Hawaii governor “a robust array of powers” to respond to declared emergencies.

“HB 2581 does not limit any of these extraordinary powers,” wrote the center’s executive director, Brian Black. “To the contrary, HB 2581 removes language that is overly broad, vague and very likely unconstitutional if exercised.”

But Green in his veto-intent message of June 21 said the state “must still guard against acts of extreme violence or acts of terrorism which can use social media or other electronic media to communicate and activate crowds or destructive devices.”

Green called himself a “strong proponent” of the First Amendment and the need to provide timely and accurate reporting during emergencies. But he said he instead favors alternative language in previously considered legislation that “more properly balances the needs for communication balanced against the need for protection.”

The press club said the Green administration did not identify what the alternative language might be, however. Nor did the administration suggest any such language as HB 2581 made its way through the public hearing process during the session that concluded May 3. The bill passed both chambers unanimously.

For the press club, the paramount interest in the bill is making sure the public is well-informed in times of crisis. The Lahaina wildfires in 2023 and the Kilauea eruption of 2018, where communication challenges were pronounced, are two recent examples.

“The hunger for fact‐based information is never more intense than during an emergency, and when that information is hard to come by, people often resort to rumors and speculation,” said press club President Tiffany Edwards Hunt in a press release. “One would think that’s the last thing the government would want in a declared emergency.”

Another concern is how long a media clampdown could last and how broadly it might apply.

“The current statute clearly represents government overreach in granting the state and county government a ‘blank check’ to shut down all electronic media transmission without providing an explanation for why this is necessary, what systems are affected, for how long, and how decisions would be made,” Chris Leonard, president of the broadcasters group, said in a press release.

HIEMA’s Objection

In an email, Blake Oshiro, a senior advisor to Green, did not explain what the alternative language for HB 2581 might be. But he did point to very similar emergency powers legislation, House Bill 522 in 2023, and indicated that the governor was heeding input from emergency management officials on the impact of HB 2581.

That input is detailed in testimony on HB 2581 from HIEMA Administrator James Barros in February. He urged legislators to look at the work done on HB 522, which Barros called “crucial as it provides a foundation for building upon existing agreements and compromises.”

If legislators followed that approach, he said it would ensure continuity and avoid unnecessary duplication in crafting bill language.

Barros opposed the 2023 bill, which died late in session, but said in testimony that HIEMA had worked with the Hawaii Association of Broadcasters and the state attorney general to address constitutional concerns while also protecting people during an emergency. HRS 127A was written decades ago, he noted, and needed to be updated.

Barros also argued that passage of HB 522 “could have consequences, such as preventing the restriction of electronic transmissions that could trigger an explosive device or ignite volatile chemicals.”

The HIEMA administrator suggested an amendment to HB 522 that would make clear that suspending electronic transmissions “would not be construed to restrict the exercise of constitutionally protected free speech or interfere with dissemination of news or comment on public affairs.”

HB 522 died in the final hours of the 2023. Barros said it was because negotiators ran out of time to draft an amended bill.

Barros said last week that he understands the concerns of critics worried about suppression of free speech. But he downplayed them.

“We’re pretty confident that this current governor wouldn’t do that,” he said.

His concern is that a future governor could exercise emergency powers “in a very negative manner. So we want to be able to provide an amendment that can address their concerns and continue to allow the governor with some flexibility.”

Defining Electronic Media

Both HB 522 and HB 2581 were supported by the press club, the broadcasters and Stirling Morita, the president of the Society of Professional Journalists Hawaii Chapter. Other than Barros, there was no opposition.

The Public First Law Centeralso supported both bills. Regarding the application of emergency powers over electronic media, staff attorney Ben Creps testified that the constitutionality “of any such authority under existing law is highly questionable.”

He commended legislators for taking steps to address the issue “before any state action is taken that deprives the press and others of their right to broadcast, and the public of its right to listen to, electronic media under the First Amendment.”

In his letter to Green, the law center’s Black said it was unclear how suspending electronic media transmissions would be done.

“How would that work?” Black asked. “Would a governor declare a state of emergency for anticipated terrorist activity and order X (formerly Twitter) or Hawaii News Now to stop broadcasting? The internet is not based solely out of Hawaii, so such an order would simply be futile — even if it were not an obviously unconstitutional prior restraint.”

Jeff Portnoy, an attorney with Cades Shutte who specializes in the First Amendment, also has major doubts about the constitutionality of current state law. He questions why HIEMA is so opposed to changing the law.

“It’s surprising to me about how much opposition state management people have,” said Portnoy, who has helped the broadcaster’s association with legal analysis. “They have mounted this opposition for the last two years, on the basis that somehow social media people will use social media and the state will be in grave danger. I think it’s absurd because we’re talking about the established media’s ability not to be shut down in times of crisis.”

The bill and the statute also raise questions about what is meant by “electronic media,” which is not defined in the state law.

The bill offers this definition: “Electronic media could include not only all radio and television broadcasts, but also could potentially include text messages, emails and posts to social media platforms, which would restrain lawful free speech and publication and violate the First Amendment of the United States Constitution.”

Portnoy said the legislative fix proposed in HB 2581 is appropriate and a better solution rather than “kicking the can down the road,” a path the administration appears to prefer, he said. The possibility of another tragedy like the Lahaina fires only underscores the need to amend the statute as soon as possible.

Oshiro, Green’s advisor, said the governor has not yet made a final decision on the bill. He has until July 10 to sign or veto HB 2581 or let it become law without his signature.

Rep. Linda Ichiyama, author of HB 2581 and a co-author of HB 522, did not respond to requests for comment.