BY JIM DOOLEY – The state Attorney General has warned lawmakers that a bill meant to punish protestors who engage in disorderly or disruptive behavior at the Legislature may be constitutionally defective.
The measure, HB2751, is generally referred to as the “stop Mitch Kahle bill” because it was introduced in reaction to a 2010 protest against public prayer made at the Senate by Kahle, a First Amendment activist.
Kahle was acquitted of criminal charges lodged against him following that protest and this month agreed to accept a $100,000 settlement in a federal court civil suit he filed against the state.
Deputy Attorney General Lance Goto told senators in a hearing on the measure that its vague wording “might create an unconstitutional content-based restriction of free speech.”
He suggested deletion of one section of the measure and expressed “concerns” about other language in the bill.
“We don’t have a problem with the Legislature removing a disruptive person,” he said, but said that adjudication of criminal conduct should be made by the courts rather than legislators.
“We suggest that it might be better to have the courts address that through the normal criminal justice process,” said Goto.
Kahle testified at the hearing, predicting that passage of the bill would guarantee additional protests and court suits.
He said the bill “is unnecessary, ineffective and will really create a risk to taxpayers.”
Kahle then answered a series of questions from members of the Senate Committee on Public Safety, Government Operations and Military Affairs about the limits of free speech inside the walls of the Capitol.
He told Sen. Michelle Kidani, D-17th Dist. (Mililani) that he protested opening prayers at the Legislature because their content was sectarian or religiously exclusive and also because the public was invited to participate in those prayers.
“So if we at decide at the Senate we want to continue prayers and that it was presented as only for senators and the public was not to participate, can we pray?” Kidani said.
“I think you probably could,” Kahle said.
“Amen,” Kidani said.
Sen. Sam Slom, R-8th Dist. (Hawaii Kai), told Kahle, “What you’re really asserting here is that your freedom of speech (is) superior to everyone else’s.”
Kahle responded: “What you’re saying, Senator Slom, is everyone’s speech is equal and that when the government gives someone a microphone and a platform and says go speak, that that’s free speech. It’s not. It’s government speech.”
When such speech is religiously sectarian or exclusive, he said, it violates the legal separation of church and state.
The committee deferred a decision on the bill until March 20.