 Aloha and welcome to Hawaii Together on the Think Tech Hawaii Broadcast Network. I'm Kelea Iakina, president of the Grassroot Institute. Today's episode is entitled Civil Liberties in the Age of the Coronavirus. Curfews, stay at home rules, suspension of the state's open meeting laws, and so forth. These are just some of the measures that our local and state government has taken in the name of fighting the coronavirus. But have you wondered about this question? How far should state and county governments go in restricting our freedoms in the name of public safety? My guest today is Jeffrey Portnoy, a First Amendment attorney who frequently represents the media on issues like this. Jeff has called Governor David E. Gaye's recent coronavirus proclamations overly broad and kind of like martial law. Portnoy is a partner in Cade Shuddy Law Firm, a former president of the Hawaii Bar Association, and named multiple times as one of the nation's top lawyers. Many of you know him as I do as a long-term broadcaster for the University of Hawaii basketball team on ESPN 1420. But please welcome my guest today, Jeff Portnoy. Jeff, welcome to the program. Thank you, Kalee. Thanks for the generous introduction. Well, we live in such an extraordinary time. Isn't this an amazing period in which our civil liberties are being challenged? Well, I think they are and I think if you follow the president and then you agree that this is a war, it would give governments tremendous power to limit our civil liberties in multiple ways. I think that there's always the situation where you try to find the proper balance between restricting certain civil liberties during a time of crisis like we are now, but not unduly turning our democracy into literally a dictatorship. And there has been and will continue to be a number of efforts by various governments, including our state and county governments, to limit civil liberties in the name of protecting us from the virus. And in particular, for example, as you mentioned, the stay-at-home orders, the quarantine, the limitation on public access to meetings and to records. And in my view, although some of this is clearly necessary, one has to always remember that this is not a war. This is not a foreign enemy. We're not dealing with spies. We're dealing with a very serious illness, but we cannot allow government to use that as we see in places like Hungary and Moscow, not only to evade our civil liberties, but to invade our privacy rights. Well, Jeff, we certainly, as you have mentioned, have seen an attack upon our civil liberties. And the question we asked is at what price is safety or public order? But I want to ask you to talk about a certain type of civil liberty and that is the right of individuals and the media to know what the government is doing. We've had a suspension here at the state and county levels of our sunshine laws and our open meeting laws. Could you let us know what these laws are and why they're so important in the first place? Sure. Well, we have on our books what's called Chapter 92, and it provides the public and the media as the public surrogate to access to public meetings and public records. And there's always a conflict, even when there is no pandemic and there's no war, between individuals who are attempting to go to a meeting, get proper notice of a meeting, view the agenda, be able to participate in that meeting, and have access to public records to see where taxpayer dollars are going, what public employees are doing. And there's constant conflict anyway, frankly, because even though we have a statute which essentially is designed to provide as much access as is reasonably possible, lots of people in government over the years, whether it be state government or county government, are oftentimes reluctant to go as far as they're required to go in providing access. That's why we have an Office of Information Practice, which over the decades, one can have their own opinion as to how efficient they have been, but they have issued literally hundreds of opinions as to whether a particular request is a viable one under Chapter 92. But it is essential, and the preamble of Chapter 92 essentially says, in a democracy, access to government is paramount. But what's happened in one of the first executive orders that this governor issued was to severely restrict access to records and to meetings. Well, Jeff, let me just ask you, why did Governor Ege suspend our sunshine laws and our open meeting laws? Why did he take that action, and what was he hoping to accomplish? Was it necessary? Well, it's a great question. I think some limitation was obviously necessary. Obviously, there are no public meetings going on, and that is understandable. But the question is, what kind of access should one have, like you and I are having right now, via computer? Should the public still have access to a meeting that may be held by the county council or by the legislature, although, as you know, they're also suspending a lot of what they're doing. But they're also meeting, and many times they're meeting behind closed doors and the excuse is public safety or the pandemic. Well, you know, all you have to do is give some people in government the slightest excuse to freeze out the public and they will latch onto it. And I think what Governor Ege and probably the Attorney General initially were thinking of doing was trying to deal with the pandemic and understanding that there had to be some restriction. I mean, obviously, in these times where so many people in government are involved in dealing with the pandemic, some of the timetables, for example, of getting access to public records probably are unreasonable. You have to give people additional time. They may well have more important things to do. But the initial order, the emergency order issued by the governor just went way too far, as well as some of the county councils. The courts, for example, have worked very hard to try to continue to protect the rights of individuals to participate in public courtrooms without being able to enter the courthouse, being able to listen in on phone or by some type of, you know, video conferencing. And it's a new world, but it's too easy to go after people's civil liberties. As I said, for example, there are apps now that certain governments, not ours yet, are using Look at Hungary, which has suspended their parliament in the name of the pandemic. Well, all it is is an excuse to have a dictatorship back in Hungary after 20 years of a democracy after communist rule. Moscow was thinking of requiring every citizen in Moscow to have a cell phone that tracks their every movement. I mean, the easy excuse is all we need to do that in order to understand who may have the disease or not. I think, obviously, you really need to try to balance. And yes, some liberties, you know, martial law, there are people in the US Justice Department that want to do with habeas corpus, which would allow them to imprison people without notice and, you know, without going through the formality. So, you know, yes, we're in a terrible situation as a pandemic, but it is a too easy excuse to limit our rights and liberties. One of the things I hear you saying, Jeffrey, is that if we give the government an inch, they'll take a mile when it comes to taking our civil liberties, particularly when it comes to practicing government with sunshine coming in so that the public can actually see what's going on. What was the condition of transparency for Hawaii government even before the coronavirus episodes? I know you've been involved quite a bit in terms of defending the rights of the media to get information and so forth. How would you assess our situation before going into the coronavirus crisis? Most national groups that have looked at our government as it relates to public access have given it very poor grades over decades. And I think all you have to do is look at the number of lawsuits that have been filed by the media, by groups like yours, by the League of Women Voters, by civil beat, by individuals who have been frustrated in their efforts to get public records or get appropriate notice of public meetings. The legislature in particular has been brutal in access issues. They've exempted themselves from chapter 92 while they've included other governmental entities. We have had mixed results depending upon who the governor and attorney general is. We've had mixed results depending upon who the mayors are. So I don't want to indict any particular person in office now. You've mentioned virtually every branch of government already. So you're not inviting any single individual, but it's a very odd squad. I'm sorry, Clare, I'm not inviting any particular governor or mayor or council, but I will tell you it has been a and continues to be a struggle many times to get access. There are all kinds of devices that some government entities use to try to limit people's participation to try to decide things in ways that are not permitted under our law. Allure is great. Chapter 92 is one of the best in the country, but it's only as good as the people who are willing to comply with it, and that's been a mixed bag. Recently, Common Cause, and you mentioned other groups as well, wrote a letter to the governor challenging his suspension of the open meetings laws. Grassroot Institute of Hawaii and other organizations, up to about 40 of them, signed on as well. And one of the things that we were asking the governor to do was simply allow groups to meet as necessary, that is allow agencies to meet to conduct necessary business and employ technology. I know you mentioned a bit about technology being used across the world. How appropriate do you think that call is to allow agencies to meet and use technology to ensure the public to have sunshine in those meetings? Well, let me ask you a question first. Did he ever respond? He did respond, and we are taking that response into consideration. Questions were raised in his response as to the efficacy and pragmatic ability to use technology at this time. Well, I don't know, that may tell you about the ability of this government to be where they should be. If you just look at the unemployment situation in Hawaii and all the breakdowns of the computers that I hear on the news and people's inability to get their claims in, you have to wonder about how far along the state and local governments are. Look, nobody expected the pandemic, and clearly it is necessary for the government to engage in much of what they are trying to do to try to protect us from getting sick. But it's a balancing act, and I think it's a little bit ironic that one of the first things the governor did in dealing with the pandemic was literally to suspend Chapter 92. I mean, why was that one of the first things that was done when there were so many other things like testing and social distancing that needed to be addressed? So, look, I'm not saying there shouldn't be some restrictions or some modifications. I'm just saying we need to be very, very careful in a time of crisis that civil liberties doesn't become a victim. Well, we're going to take a quick break now, Jeffrey. This has been very fascinating, and I appreciate your insights. And we'll come right back and continue our discussion on the topic. My guest today is Attorney Jeffrey Portnoy. We're talking about civil liberties in an age of coronavirus. I'm Kaylee Akina with Grassroot Institute on Think Tech Hawaii's Hawaii Together. Don't go away. We'll be back in just one minute. Aloha. I'm Christine Linders, a physical therapy specialist and the host of Movement Matters. My show is designed to teach you the simplest and most effective treatment strategies to get you out of pain and back to doing what you love. If you or someone you know is having pain in a certain area of the body, it would like a free assessment in treatment over media or in person. And then come on the show to talk about it. Email us at thinktechmovementmatters at gmail.com. Or if you have a topic you would like to know more about, please email us. My goal is to decrease pain all over the world, inspiring people to take better care of their bodies to enjoy life to the fullest. I look forward to hearing from you. Thanks for sticking around and welcome back to Hawaii Together on the Think Tech Hawaii Broadcast Network. I'm having a fascinating conversation with Attorney Jeffrey Portnoy about the loss of civil liberties that can take place either deliberately or inadvertently in the name of handling a safety emergency, the coronavirus pandemic in particular. We've been talking a bit about the actions of Governor Ege and I welcome Jeff Portnoy back to the program now. Jeff, during this time, what could the governor do if he wanted to backtrack a bit from his proclamation that curtailed sunshine laws and open meeting laws? What are steps that could be taken to ensure that the public's right to know is honored? Well, let me back up just for a second because, you know, a lot of the governments are looking at a United States Supreme Court case 1905 called Jacobson versus Massachusetts, in which the United States Supreme Court upheld the right of the state of Massachusetts to order people to take the smallpox vaccine. And that case, which has probably been dormant for 115 years, is now being cited by governments to give them cover for limiting civil liberties, for ordering curfews, for all of the things that we're seeing. Now, you know, fortunately in this country, even though that case is around and is 115 years old, it still shows you to the extent that at least our Supreme Court 115 years ago believed that a government could intercede and impose upon an individual their right or their refusal not to take a smallpox vaccine. So we're a long way away from that now. I mean, imagine if Governor Ege would have ordered that every single citizen here take an antibody test. I mean, could that happen in the United States in the next three months? I don't know. It's not beyond the realm of conjecture that that could theoretically happen, either on a state level or on a national level. Now it'll never happen because there isn't enough testing material, but just think about it hypothetically, if three weeks from now the governor were to order every single person in Hawaii to undergo a COVID-19 test or an antibody test, could you fight that and prevail based upon that 1905 decision? So, you know, look, I think people understand, most everyone understands. There have to be some limitations. For example, the governor's press conferences. I got a call from a radio station on the Big Island claiming that they were being frozen out because the governor was only allowing, you know, a certain small number of people into the press conferences and the rest had to participate by phone or by video and they weren't being allowed to ask questions and I think they had some legitimate concern, but not that they had everyone had a right to show up in the governor's office when we're limiting people's interactions to groups of 10 or less. But as you point out, there's plenty of technology. And I don't understand why, for example, everyone can participate by video conferencing in a governor's press conference or why people should not be able to participate in a legislative hearing by video conferencing. Now, what are the reasons? Well, let's go through them. One, they don't want anybody to participate and this is a great excuse. Two, they don't have the technology. Three, even if they have the technology, they don't want people participating and this is a great excuse. So, you know, or there can be certain discussions which understandably need to be kept secret at least initially. The problem is finding the balance and finding people in government who not only are looking out for themselves so they don't get embarrassed or that their deliberations are not unduly looked at and judged by social media, but they have not only what they think is best to be done to protect the public, but always remember we still have a constitution at least until we get into a war and habeas corpus is suspended. Over the past weekend here in Honolulu, we instituted a curfew. Basically, the roads were to be cleared of any cars or vehicles between 11 p.m. and 5 a.m. for the evening to Friday, Saturday and Sunday and the government is looking at that as well. Maui instituted a curfew. Kauai has had a more draconian curfew for about a month already and now we're starting to see at least in Honolulu County the drones flying around over the beaches and other areas giving warnings from the city government. What are your thoughts about these measures? Are we going a bit too far? Are we looking at measures that may be taken and not reversed after the coronavirus? Do you have concerns? I do and I mentioned this earlier. We've been talking about civil liberties, but let's talk about privacy rights. I mean drones on the beach are one thing. Beaches are open. They stretch for miles. Everyone can see what everybody else is allegedly doing on an open beach like in Waikiki. But what if they flew the drone over my house and watched me to make sure that I was in my backyard or I was in my kitchen? How far are we willing to go? I talked about that 1905 case enforcing people to take the smallpox vaccination. I've talked about what's going on in Moscow where they're thinking of imposing on an app or in China where the government would know where you are every second. You think we're too far away from that? I don't know. What if the governor would decide that everybody that has a cell phone in Hawaii, assuming this could be done technologically, or by Google or by Facebook, would let the government know where you are every second of every day to know whether you are violating the social distancing? Would the public tolerate that? I don't know. I mean it is a tough decision. Do we lose our right to privacy? So drones, I think it depends on where they go and what they do. And also you know the police are being very careful that all the drones are not taking video. You heard that, at least I did on the news, that they're just announcing things. But what if they were taking video and not just of a public place? But my backyard or your backyard or my office building, just to tell the government where I am. I think it's a slippery slope but I think that's something the public has got to deal with. Again, I don't think we're in a time of war. We're not dealing with a foreign enemy. We're not dealing with spies. We're not dealing with nuclear secrets. We're dealing with a pandemic, a disease. And I think we have to balance what's appropriate. Now you mentioned the curfew and this is just a personal opinion. I think you can impose a curfew. I think it's been imposed at least on Oahu in a very willy-nilly way. I know that's not very legal. 11 to 5, who's out 11 to 5 anyway in Hawaii? I don't want to go into the people that they would probably be at the bars and the bars are closed. Kauai 9 to 5, maybe a little bit as you say draconian, but it may make sense. My daughter lives in Bermuda. You know they have a full-time 24-hour curfew. You're not allowed out of your house unless it's for very, very limited situations like going to the doctor or picking up groceries and then only one person is allowed. So you know, there are things that are done for political reasons. There are things that are done for reasons that are questionable. And you know, I don't get the 11 to 5 curfew. You're going to have a curfew make it realistic. But anyway, I think you do have to be concerned about your privacy rights in a time of stress like this. Jeff, do you think that some of these measures such as drones that only make announcements or limited hour curfews are being instituted to condition the public for a further loss of rights? No, I don't. But I think you raise an interesting point that are we going to get conditioned? You know, is the next thing that happens which may not be this serious going to cause the government to impose the same restrictions and we kind of shrug because we've just been through it. You know, I don't think that's going to happen. I mean, World War II, we had lots of restrictions. During the Civil War, we had lots of restrictions. It's been for, you know, for our generation, we haven't experienced it. Our parents' generation did. I don't know. I don't think that's going to be an issue. But I do think the more people get accustomed, if that's the word, to things like drones going over the beaches, I think there's a reason to be concerned. But I don't have any reason to think that those kinds of measures are going to become the rigor. I think they're being used for the proper purpose. I just think there are certain things that we need to be very careful that don't get imposed upon us in the name of safety. Yes. Is there any precedent you're aware of that could be used against government overreach during this time of coronavirus response? I think you could try. But I don't think you're going to find a very sympathetic court. You know, and I don't think the public is going to be all that concerned. I think it's one of those things where actually the government probably is going to get a more sympathetic view of this than they might otherwise. Yeah. I mean, I think you could try to challenge an emergency proclamation that there isn't sufficient reason for it. I don't think you'd get very far. I mean, I always advise my clients in the media, yeah, you may have a technical argument that there's been a violation, but how does the public feel? I mean, let's assume, let's take a totally unrelated issue that you wanted to publish the name of a rape victim, which legally you can do, but most media won't do. So let's assume you publish the name of a rape victim and the rape victim brought a lawsuit against the newspaper and the newspaper defended it. Where do you think the public would come down? They'd probably say, no, we agree with that rape victim that her name should not have been published, even though constitutionally you have every right to do it. So you have to pick and choose. I think right now it would not be wise, I think, to challenge where we are. If it goes beyond it, if they start flying drones over my house or they tell me I got to put on my app where I am every second, I think you'll see some lawsuits. Well, Jeff, you've alluded to the public a couple of times in terms of the reaction to the loss of civil liberties. Do you think that we in Hawaii are too tolerant and do you think that that would perhaps leave us open to the further loss of our civil liberties? No, I don't think so. I think the governor's proclamation on access went too far, but the social distancing and the testing, it's all voluntary. That's all voluntary. Some of it isn't, right? I mean, if you're out on the beach and you're not in the water, you're going to get cited now. And I imagine, by the way, police, some people are going to challenge those citations. It's going to be interesting. We haven't heard the last of this. People are being arrested now, and I think some of them are going to defend on the basis that it's a violation of their constitutional rights. It's going to be fascinating to see how it plays out. There's going to be a toilet to get off the plane and are not going to go to a hotel, and they're going to be arrested, and they're going to defend themselves on the basis that they have a right to walk the streets. I don't know if they'll prevail. I think they probably won't, but I wouldn't bet on it one way or the other. Well, we certainly will be watching how this unfolds, and we may be talking with you again. Jeff, thank you so much for your time today. I appreciate your commitment to civil liberties. Thank you for being on the program. Thank you for inviting me. Be safe. My guest today, Jeffrey Portnoy, an attorney who deals in civil liberties. We've had the privilege of hearing his insights. I'm Kili Iakina with the Gratitude Institute. Until next time, on Think Tech Hawaii's Hawaii Together, aloha.