Free-speech rights support sign-wavers


POSTED: Wednesday, October 01, 2008

Question: Earlier during the election season, we saw sign-wavers out on Kamehameha Highway between Pearl City and Waipahu. They parked their cars and waved their signs on the state Department of Transportation right-of-way or on the shoulder of the highway, posing a danger to motorists (and themselves!) by distracting drivers. Could you please publish a warning to sign-wavers to choose their locations with caution at any location throughout the islands?

Answer: Safety should be a prime concern and sign-wavers would do well to consider how much of a distraction their activity poses to drivers and themselves.

However, it turns out this is not just a safety concern, but a constitutional issue. A state law prohibiting political sign-waving in such areas was deemed unconstitutional decades ago.

When we contacted the Department of Transportation in August, we were told that, “;Political campaign sign-waving is not allowed on state highway rights-of-way, which include roadways, shoulders, medians, sidewalks and adjacent areas.”;

Cited was Section 291C-77(c) of the Hawaii Revised Statutes: “;No person shall hold or display a movable sign within the right-of-way boundaries of a public highway or on the sidewalk abutting a public highway or in an area adjacent to the highway for the purpose of carrying on political campaign activities ... which seek to draw the attention of occupants of motor vehicles using the highway.”;

However, after we pointed out this addendum: “;Case Notes: Subsection (c) violates First Amendment freedom of speech. 516 F.2d 892,”; we were advised to contact police regarding enforcement.

Patrol commanders are aware that enforcement of that law has been deemed unconstitutional, said HPD Maj. Alan Bluemke.

As it is, complaints about political sign-wavers are few, he said, and usually involve other violations, such as sign holders being on the roadway or blocking the sidewalk.

Officers are sent to check on those complaints, he said.

The city Prosecutor's Office explained that the 9th U.S. Circuit Court of Appeals deemed HRS 291C-77(c) unconstitutional in 1975.

It's unclear, Jim Fulton, executive assistant to Prosecutor Peter Carlisle, acknowledged, as to when one thing - the right to free speech - might outweigh another - someone's safety. But the bottom line, he said, is that the law “;is not enforceable.”;

The case that led to the ruling was Aiona v. Pai. Federal Judge Martin Pence Jr. declared the law unconstitutional “;and enjoined its enforcement.”; Then-state Attorney General George Pai appealed, but the U.S. Court of Appeals “;held that statute was unconstitutional and that since unconstitutionality was settled beyond question it was unnecessary to convene a three-judge court.”;

In light of this, Transportation Department spokeswoman Tammy Mori said, “;We'd just like to reiterate the issue of safety - that's the primary priority when dealing with sign-wavers. We just highly recommend that sign-wavers must not put the safety of motorists or their own safety at risk.”;

She also are encouraged sign-wavers to consult with the Transportation Department about locations. Call 587-2160.