by Andrew Walden
The American Civil Liberties Union (ACLU) is backing Grassroot Institute’s federal lawsuit challenging Act 11, Hawaii 'Corporate Personhood' law.
Excerpts from an amicus brief filed by ACLU, September 18, 2026, explain why:
I. Act 11 prevents civil society organizations and their members from exercising their constitutional right to participate in the political process.
… Much of the ACLU’s advocacy in defense of civil rights and liberties around the country would be banned or chilled under restrictions like those in Act 11….
A. The ACLU and ACLUF regularly engage in “ballot-issue activity” in states throughout the country.
Act 11 prohibits nonprofit entities like the ACLU and ACLUF from engaging in “ballot-issue activity,” which it defines as “paying, contributing, or expending money or anything of value to support or oppose a constitutional amendment, county charter amendment, or other ballot question after it has been formally certified or submitted to the electors of the State or any county.” Haw. Act 11 §§ 8–11. If put into effect, the law would prohibit the ACLU, ACLUF, and other charitable or nonprofit organizations from contributing to ballot committees or taking out their own advertisements in support of, or opposition to, ballot measures. It would also prevent such organizations from spending resources to organize or facilitate rallies and canvassing operations in which members take to the streets to educate other citizens and make their voices heard. It could even be read to prohibit an organization’s use of staff time to research ballot measures, formulate the organization’s position, and disseminate its views. Such restrictions impede the ACLU and ACLUF from advancing their mission to protect civil rights and liberties….
B. Prohibitions on “election activity” will chill the ACLU’s speech about candidates’ positions on civil liberties issues.
Act 11 further prohibits nonprofit organizations like the ACLU from engaging in “election activity,” even when done “indirectly.” Id. §§ 8–11. The Act defines election activity as “paying, contributing, or expending money or anything of value to support or oppose a candidate, political committee, or political party.” Id. § 8. Notably, the Act does not define what kinds of communications would constitute “indirect” support or opposition….
Take, for example, the ACLU’s congressional scorecard system.4 To inform the public about their legislators’ track records on civil rights and civil liberties issues—including criminal law reform, disability rights, free speech, racial justice, and others—the ACLU tracks members’ votes on legislation affecting those issues.5 The ACLU assigns a percentage score to each member of Congress, including all four members of Hawaiʻi’s congressional delegation, based on the share of their votes for or against legislation that affects civil rights and liberties, and publishes the resulting scorecard….
The ACLU also works to inform voters about the positions of candidates for state office. In this election cycle, for instance, the ACLU is expending significant resources across three states to educate voters about the civil-liberties positions of candidates for state Supreme Court, secretaries of state, and state legislators….
These efforts all involve expending financial and operational resources. All would be jeopardized under restrictions like those in Act 11 if public officials were to conclude that these voter education campaigns “indirectly” support or oppose the candidates discussed….
And the ACLU’s advocacy has been suppressed by unconstitutional restrictions like those contained in Act 11. For example, in the runup to the 1972 election, the ACLU sought to sponsor a paid advertisement in The New York Times criticizing the Nixon Administration’s anti-busing policies and praising members of Congress who had disagreed with the President’s position on busing. See ACLU v. Jennings, 366 F. Supp. 1041, 1042–43 (D.D.C. 1973), vacated as moot sub nom. Staats v. ACLU, 422 U.S. 1030 (1975). The advertisement would have listed an “honor roll” consisting of the names of every member of Congress who opposed President Nixon’s anti-busing policy. Id. at 1043. But, on advice of counsel, the newspaper refused to print the ad for fear of criminal penalties under a provision of the Federal Election Campaign Act and its implementing regulations that regulated the placement of ads “on behalf of” or “in derogation of” a candidate. Id. The ACLU challenged the law under the First Amendment and won. The court held that the challenged provision “establishe[d] impermissible prior restraints, discourage[d] free and open discussion of matters of public concern and as such must be declared an unconstitutional means of effectuating legislative goals.” Id. at 1050–51. Act 11 similarly constrains the ACLU’s ability to publicly hold elected officials to account, and it should meet a similar end.
II. Act 11 cannot evade the First Amendment by restyling its restriction on corporate speech as a limitation of corporate power….
At bottom, Act 11 challenges the well-established principle “that First Amendment protection extends to corporations.” Citizens United, 558 U.S. at 342 (collecting cases); see also, e.g., NAACP v. Button, 371 U.S. 415, 428 (1963) (holding that the NAACP “may assert this [First Amendment] right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail”). The State tries to sidestep this blackletter law by framing Act 11’s restrictions on political speech as a limitation on corporations’ power to speak, rather than an infringement of their right to speak, thus obviating the need to justify the Act’s restriction on political speech under strict (or even intermediate) First Amendment scrutiny.
According to the State, every restriction on corporate political speech struck down by the Supreme Court can be resurrected by restyling it as a limitation on corporate power. The State could even selectively restrict corporations’ power to advocate for disfavored views on hot-button topics from abortion to gun control to LGBT rights….
Indeed, the State’s theory implies that neither nonprofit nor for-profit corporations truly possess any First Amendment rights, because the government could simply deny them the antecedent power to exercise those rights. After all, if the government can deprive corporations of the “power” to spend money on ballot issue and candidate advocacy, notwithstanding Supreme Court precedent holding that such speech may not be restricted, why could it not deprive a corporation of the power to speak at all about public controversies? See FCC v. League of Women Voters, 468 U.S. 364 (1984). And why could it not equally deny corporations the power to lobby government officials, see Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), or criticize them, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964)? What would prevent the government from denying corporations the power to organize a demonstration, see Claiborne Hardware, 458 U.S. at 930–32, solicit clients, Button, 371 U.S. at 428, or publish government secrets, N.Y. Times Co. v. United States, 403 U.S. 713 (1971)? For that matter, why couldn’t the government condition corporations’ power to distribute films, books, or other media on certification by government officials that the material is fit for public consumption? See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). The State’s theory would open a Pandora’s box of government restrictions on speech by “artificial persons”—i.e., civil society writ large. The State offers no limiting principle that would forestall the slide down this slippery slope….
The Court should reject the State’s semantic maneuver. “The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by ‘mere labels.’” Chiles v. Salazar, 607 U.S. 627, 645 (2026) (rejecting Colorado’s characterization of talk-therapy as a form of conduct) (quoting Button, 371 U.S. at 429). Instead, the Court must “look through forms to the substance” and determine whether Act 11 unconstitutionally restricts protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963) (striking down a Rhode Island statute, even though it did not directly restrict speech, because it effectuated an informal system of censorship through threats of legal action). The State’s characterization of Act 11 cannot obscure the obvious reality that the statute—especially as applied to nonprofit, nonpartisan corporations like the ACLU—concerns “not the privilege of a corporation to do business in a State, but rather the freedom of individuals to associate for the collective advocacy of ideas” in the political arena. NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 309 (1964).
The government can no more limit a corporation’s “power” to engage in protected expression on matters of public concern than it can punish the speech itself….
PDF: ACLU Amicus Brief
SB2471/Act11: Text, Status
2016: HCR29: Legislators Vote to Abolish ERS, End Free Speech for Star-Advertiser)
June 2026: Lawsuit: Hawaii 'Corporate Personhood' law silences nonprofits and civic groups
Sept 2026: US Chamber of Commerce sues Hawaii over law targeting Citizens United
Oct 2026: After Pretending to Join ‘Stop Corporate Personhood’ Circus--ACLU Shows True Colors (again)