Hearing set in suit
over state ‘ban’ law

A federal judge wants to find out whether Carlos Hernandez was merely viewing gay-related Web sites or was violating Hawaii State Public Library policies by viewing nude images on the Internet.

If U.S. District Judge Helen Gillmor determines that Hernandez violated library policy, then she could throw out his part of a lawsuit challenging a state law that bans individuals from public places for a year. Also, the judge could determine there is no issue for Hernandez to contest because the library has rescinded its ban against him.

She has scheduled a March 14 hearing to determine whether the plaintiffs can proceed. Gillmor postponed the plaintiffs' arguments on a motion for preliminary injunction yesterday.

An evidentiary hearing would also determine whether claims by plaintiffs the Center and the Waianae Community Outreach are "speculative" or whether they have indeed been affected by the law, Gillmor said.

The Center, a nonprofit group that provides services for the gay, lesbian, bisexual and transgender communities; the Waianae Community Outreach, which provides case management services to the homeless; and Hernandez are seeking a court order to prevent the state from enforcing the law, which they contend is vague and flawed.

The law, known as Act 50, allows officials to ban an individual or group from entering a public place for up to one year after a warning has been issued. It was aimed at removing squatters from parks, beaches and other public places where they illegally put up tents and other shelters.

Lois Perrin, legal director of the ACLU, said Hernandez was looking at gay-related Web sites, but noted a dispute exists and hopes the upcoming hearing will clarify the matter.

The plaintiffs contend Act 50 has been used against them and others and that it chills their free speech and conduct.

The library has since rescinded the no-trespass order against Hernandez because of a "technical error" but failed to notify him, Perrin said. The ACLU learned of the rescission only when the state filed its response to the complaint, she said.

Deputy Attorney General Girard Lau said the plaintiffs have failed so far to establish standing and therefore cannot proceed.

The statements given by two private security guards at the library in May when Hernandez was issued the no-trespassing order show he was not merely accessing gay-related sites, but "screen after screen" of frontally nude adult males, Lau said.

According to briefs filed in the case, library officials maintain that its policies do not prohibit accessing gay-related Web sites. But the rules prohibit "disruptive behavior" that "unduly interfere" with the enjoyment and use of the library by other patrons. Among the examples of disruptive behaviors cited in the rules are the display of "offensive images" on Internet terminals. Those who violate the rules can be banned from the library if they do not comply.