Tuesday, June 18, 2024
Hawai'i Free Press

Current Articles | Archives

Thursday, February 7, 2013
SB465 “Tramples on First Amendment”
By News Release @ 3:45 PM :: 4880 Views :: First Amendment

Re: SB 465

Dear Senator English,     Feb. 6, 2013

As general counsel for the National Press Photographers Association (NPPA) I write to you on behalf of the organizations listed below to voice our strong opposition to your proposed bill, SB 465, the “Steven Tyler Act.” While you have expressed the opinion that this bill will help your state’s tourism and film industries by encouraging famous people to come to Hawaii without fear of being stalked by paparazzi, we are concerned that the bill as drafted tramples upon the First Amendment rights of citizens and journalists.

We believe the creation of a civil cause of action for “constructive invasion of privacy” is overly broad and vague and imposes greater civil penalties upon otherwise protected forms of speech and expression. We are also concerned that remedies for invasion of privacy are already properly addressed by current Hawaiian statutes and that special and punitive treble damages will further chill free speech. Additionally, the definition of “commercial purposes” fails to recognize acts of valid newsgathering and in fact penalizes publishers and broadcasters along with visual journalists and innocent tourists.

In another well-meaning but ill-conceived case involving similar language, the U.S. Supreme Court ruled in U.S. v. Stevens, 559 U.S. , 130 S.Ct. 1577 (2010), that the Animal Crush Video Prohibition Act of 2010 was an unconstitutional abridgment of the First Amendment right to freedom of speech.

To paraphrase the Court in Stevens, depictions of persons engaging in a personal or familial activity are not, as a class, categorically unprotected by the First Amendment. Because SB 465 explicitly regulates expression based on content, it is “presumptively invalid” Accordingly, the First Amendment has permitted restrictions on a few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Visual images, sound recordings, or other physical impressions of another person who is out in public where there is no reasonable expectation of privacy should not be added to that list.

Depictions of animal cruelty are most likely offensive to a reasonable person, but the Stevens Court found that in the balance of relative social costs and benefits, even such images could not justify the restrictions sought to be imposed when weighed against the benefits derived under the First Amendment. What is even more telling is that Act was struck down by the Court even though it contained a subsection that stated it did “not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value;” whereas SB 465 not only makes no such distinction but specifically seeks to lessen the protections traditionally afforded to journalistic activities.

SB 465 imposes civil penalties of alarming breadth and burdens substantially more speech than is necessary to advance a compelling government interest. While we recognize the right of privacy, we oppose a broadening of those protections by abridging the clearly established tenets of First Amendment Jurisprudence.

It is for these reasons that we respectfully ask you to withdraw this measure. Thank you for your attention in this matter.

Very truly yours,

Mickey H. Osterreicher

General Counsel

On behalf of:

  • Reporters Committee for Freedom of the Press (RCFP)
  • American Society of Media Photographers (ASMP)
  • American Society of News Editors (ASNE)
  • Associated Press Media Editors (APME)
  • Society of Professional Journalists (SPJ)
  • Bay Area News Group
  • Newspaper Association of America (NAA)
  • Association of Alternative Newsmedia (AAN)
  • Radio Television Digital News Association (RTDNA)
  • North Jersey Media Group Raycom Media, Inc. KHNL/KGMB, LLC
  • Media Law Resource Center (MLRC)
  • Lin Television Corporation d/b/a KHON-TV
Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

Aloha Pregnancy Care Center

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii

FIRE

Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Habele.org

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

MentalIllnessPolicy.org

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

Natatorium.org

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii

Obookiah

OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

RailRipoff.com

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

SenatorFong.com

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii