 This is Think Tech Hawaii, Community Matters here. Welcome back to Talk Story with John Wahey, aloha everyone. This is something very unusual in our format, and that is that it is actually part two. Part two of our last session where we were able to spend some time with Jeffrey Portnoy, who is one of, oh no, I think he's the Dean of Hawaii First Amendment Lawyers and Experts, and actually a professor at the University of Hawaii Law School teaching constitutional law. So, Jeffrey, since you came once, I wasn't going to let you go. We've got a great subject that we've been talking about, the First Amendment, so welcome back. The Dean just means I'm old, and the second show means I'm cheap. I don't know about that. I don't know about that. For you, John. But welcome back, Jeff. You know, one of the things that we were starting to get into at the last show was this idea of what constitutes government action. I mean, the way I understand the First Amendment, as you pointed out in our discussion, it's really a prohibition against government stopping someone from expressing their point of view. That's true. That's pretty clear. That's true. So what would constitute the government action? Well, the simplest answer is a statute, an ordinance. An ordinance saying that you can't do something. Right. Right. You know, an ordinance that would prohibit certain types of speech or certain types of symbolic speech, like a march or, you know, being able to express yourself either in words or in deed. And then you get into the debate over what speech versus conduct, and you can have symbolic speech. So, but to answer your initial question, government has to do something that an individual or a group believes inhibits their right to speak either verbally or symbolically. Well, you know, the, when we use the word government, that's a very broad. It is. Schools, for example. Yeah, exactly. Schools are included. You talked about the case of the young man who wore the ombet. Sure. So schools are included government. The simplest answer, of course, is state government, city government. Those are the ones that people, federal government, those are the ones people mostly think about, but any kind of institutional political activity that is essentially considered governmental action, and it extends to public schools, public universities. Anything that's, and so it would have been okay in terms of for that young man, it would have been okay for the school if they were private to prohibit, I believe so. I mean, this whole NFL thing, for example, if the NFL were to pass a rule that said you had to stand for the national anthem, people like to argue while you're infringing upon my free speech, but it has nothing to do with private interaction. Absolutely. So if you receive any federal funds at all, courts have said that could be government action. So that's the connection. Tom Santilla, if I remember the word correctly. You can even be a non-profit, for example, and if you're receiving funds from the government, you could be considered to be government for purposes of speech. What about someone who is not receiving funds directly from the government, but who has a tax exemption like a non-profit? Is that issue more problematic? Has that issue been litigated? Yeah, sure. It gets litigated when the government attempts to stifle certain speech or to put restrictions on governmental funding abortion. Absolutely. It's a perfect example. And there have been lots of cases in which states or municipalities have tried to restrict picketing in front of an abortion doctor's office, et cetera, and they have found many times that when it's a non-profit or whatever that there's governmental action involved. Because there's some connection to government. So the purely private interaction is not protected by the Constitution? Well, okay, so since we talked about the NFL, there was some interesting new developments in this otherwise saga in this past Sunday where the Vice President himself goes through a game and decides to, in a sense, I think, exercise his symbolic speech. Now clearly as an individual, he ought to be able to do anything he wants, right? So he goes there and he people kneel and he doesn't like it, so he walks out. But that's all like pre-planned, apparently. Apparently. All right, so. There was a tweet from the President that's saying I told him to do it. I mean, sometimes we don't know whether the President actually did that. But in terms of a legal, that's pretty good framework. That's pretty good evidence that it was pre-planned. So he goes there, he does this, he walks out. Now, that costs the taxpayers money, first of all. So that's kind of a connection or is it? I think that would be a hard connection to make. But you look at the cases, the free speech cases, religion cases, so much of it depends on the politics of the judges and the way they want to define very precise rules. You can find courts, as you know, disagreeing. Absolutely. Circuit Court with the Supreme Court, R-I-C-A with our Supreme Court. But generally government is government and it would extend to groups or organizations that directly receive federal funding in many cases. See, what's troubling to me on what is government question, and when we get to the President and the Vice President, is that they are one branch of government. And so how do you separate somebody's persona from somebody's position in that situation? Because on one hand you have people like taking the kneeling down as a way of advancing an issue. And this morning, I'm getting this stuff, by the way, by watching the newscasters and talking heads in the morning. But now I hear the argument being raised that on one hand people are trying to express something about an issue. On the other, you really have government persona using government money to stifle the expression. Well, and that's part of it. I mean, obviously if the government is making decisions on what it's going to fund and who it's going to fund and an argument can be made that they're selectively encouraging certain speech or deterring certain speech, you can bring a claim. See, that was the second part of it. I'm not saying you'd succeed, but you can certainly bring a claim and you might succeed depending upon the facts. The government can't favor one type of speech over another. Well, it has to be neutral, although, and this gets technical, depending upon the speech there are different levels of judicial review. A strict scrutiny means the government has to have an overwhelming reason, no other alternative. Intermediate scrutiny is kind of like, well, they need to come up with a pretty good reason. And then you have the basic, okay, the government's making an argument as to why they need to do X, Y, or Z. And it depends on the type of speech. Political scrutiny, for example, you have to have strict scrutiny. You get down to other levels of speech, it becomes intermediate scrutiny. And the other thing government has and can do, John, is what we call time, place, and manner. They can restrict speech from a certain place if they allow it somewhere else. So for example, you try to put a billboard advertising a Korean bar within 50 feet of an elementary school and the city says, you can't do that. Try to probably be upheld so long as you can put that billboard a thousand feet away, which still subjects people without having access to it. So time, place, and manner. Or you can restrict when you can march in a particular area if you can show that there's some business reason why that particular timeframe may not be appropriate. But you can't tell people you can march between midnight and 2 a.m. when no one is there. Right. Right. So you can have place and manner restrictions, but they have to be non-prejudicial. They can't favor one group or one type of speech over another. See, the question, because I heard this is leading up to something, I hope. Yeah, well, it's leading up to the fact that, well, first of all, this is really interesting stuff. So I hope that people out there begin to understand the issue. But it's leading up to a very interesting argument I heard, actually on, I think it was Fox News. No, you don't watch Fox. Yeah, I sometimes do. Did you ever hear about that? It's the freedom of speech thing. Oh, God. Well, it's good to get different views. But it's interesting, because there was a presentation saying, and the gentleman actually meant it, and I was thinking to myself, wow, you know, and what he said was the First Amendment says that the Congress cannot make any law. It does say that. It doesn't say that the President can't do something. I mean, that's the literal language of it, but I think the courts have made it pretty clear. Administrative agencies are subject to the same restrictions as Congress. Yeah, I would think so, wouldn't you? I mean, the Federal Trade Commission, you know, you can just go through litany after litany. And then when they make a regulation, you couldn't. So it's pretty well been, I think, decided that not only Congress, I mean, how about state government? Well, yeah. Well, it's city government. But what's interesting, I noticed that in the Hawaii amendment, it doesn't do that. Which you're responsible for in part, thank you very much. It doesn't do that. And actually, what the Hawaii amendment says, just no law can do that. You guys found the right to privacy. Absolutely. No one else has any of that constitution. It took the United States Supreme Court to make up the right to privacy. To make it up. If you guys made sure it's in the Hawaii Constitution, of course, nobody ever said what it means. Well, let's in there. Let's take a look at that. You know, this is the Hawaii state constitution. Well, I heard it in a provision, believe me. Yeah. And this is the, what are the different, one obvious difference is that the Federal First Amendment starts up with Congress can make no law. You have the Hawaii Constitution just said flat out no law. And I'm assuming that means no regulation, no anything that restricts. And so it seems like the Hawaii provision is more, it's broader. It's a little bit broader. I mean, the Hawaii section for freedom of religion, speech, press, assembly and petition, very similar to the First Amendment. Very similar. But there have been instances where, or have there been instances where the Hawaii court may have gone farther in the protection of the First Amendment than the United States. You argue that. I argue that all the time. If I think the Hawaii Constitution is going to provide greater rights to my clients than the Federal Constitution, and many other people do that as well. And not just this provision, the privacy provision is one that I actually think they face it on the opposite side. So you know, I mean, the United States Supreme Court has made it clear that states have the absolute right to increase the rights available to its citizens. They don't have the rights to abridge any rights that are given under the Federal Constitution. Right. And the Federal Bill of Rights. But they can expand it. And the 1978 Constitutional Convention in Hawaii, that is right. We're going to take a short break right now. But when we come back, I want to discuss that tension between the right to privacy and freedom of expression. You got it. All right. We'll be right back. This is Stink Tech Hawaii, raising public awareness. My friend, mother, what big eyes you have. She's fine. All the better to see you with my dear. What are you doing? Okay. Cool. I just heard from birth accelerates the baby's brain development. And you're doing that now? Oh, yeah. Yeah. This is the starting line. Push. And this is over. You're dead. Read aloud 15 minutes, every child, every parent, every day. I just walked by and I said, what's happening, guys? And they told me they were making music. So I did. Welcome back to Talk Story with John Leahy. Our special guests, Jeffrey Hortenoy, the number one First Amendment attorney in the state of Hawaii. And by the way, folks, if you want to call in and have any questions, this is your time to ask the premier lawyer here something that you might have to pay for otherwise. And so our phone number is 808-374-2014. Give us a call. Jeffrey, here we are. Just before the break, you got into a very important subject, and that's the right to privacy versus freedom of speech. And I know that comes up in government all the time. I mean, the usual place where it was found was regarding employee salaries, people who work for state government. I mean, you know, they're salaries. Is that a private matter or is that a legitimate... Well, if you ask me, it's not private. But unfortunately, if you believe in access to government and access to government records, you bemoan the fact that you can. That privacy amendment in the Hawaii state constitution. Because as I said, quite frankly, John, it was enacted, but it wasn't enacted with a lot of thought as to what it meant. And I think it's taken on a greater meaning for those people who want to restrict, and I'm talking about people in government, want to restrict the citizens' rights to know what's going on of access. Right. And so university salaries, which should be a non-issue in many places, becomes a very litigious issue in Hawaii because the government officials argued that... Who owns the right of privacy? I mean, who has to... The individual. The individual, right? So personnel information or personal information, sometimes they go together, is very difficult to get in Hawaii. Is it the individual that's stopping you from getting that? I don't even know. The government just does it for them. Right. I mean, does the government have a right to do that without them expressing it? You know, I seriously doubt whether they run into a conflict with the individuals they're protecting. And whether it's police department and trying to get access to certain police disciplinary records or salaries, as you mentioned, we run into lots of opposition. Give credit where credit is due. And again, you were responsible for Chapter 92, which does say in the preamble that the citizens have a right to know what their government is doing. Absolutely. But then unfortunately, the legislature is tinkered with it and put in a whole bunch of exceptions and exemptions. And so it's not toothless, but they've taken a lot of the power out of what was initially supposed to be one of the most far-reaching access state statutes in the United States because there is no constitutional right of access, either in the Hawaii Constitution or in the U.S. Constitution. So it's a creature of statute and then judicial interpretation. You know, the other side of the right to privacy was that it would be protecting somebody from, you know, their... Yeah, so securing a number of medical information, I don't think that's... Or their sexual orientation. I think that's true, too. And, you know, a whole slew of other things. And how much taxpayers, how much money we're paying as taxpayers for certain governmental employees and functions to me is an absolute right. I believe that, too. I know, I absolutely believe that if, you know, you should be able to follow the money, follow the money. Wherever government spends its money, citizens ought to be able to follow the money. No, I paid dearly for that. Right after we passed the law, every request that came in. Sure. But there ought to be a... So there is this right of privacy that's a challenge to the First Amendment. No, you put into place and then you funded the Office of Information Practice. It was extraordinarily active early on. Now it's basically toothless. It's defunct. Really? I mean, not literally, but practically. It's got almost no employees. It's been defunded. It's been moved from one department to another. And frankly, I think, and not under the just recent governor, it's just been a gradual erosion of access. And not just the state. The counties aren't exactly champions. I was amused to read last week that all the county councils have passed resolutions complaining that the state doesn't open up its legislative discussions. And they're angry that they're not subject... Because the state, you know, exempted itself. I know. The state exempted itself from the open meetings. Well, I mean, that to me is mind boggling. And I read Scott Psyche says, well, you know, we're very controversial. It's very... Not controversial, but what we do is very difficult and we can't be subject to all these rules. Yet the county councils will make you responsible to try to have open meetings and give notice. But as far as the legislature, we can do things in secret because we're working on important stuff. Yes. And there is that inequality is done completely in secret. Yeah. Well, and I don't understand that. We're getting off the topic, but... I don't understand that at all. I mean, and freedom of speech, by the way, in my opinion, includes the idea that people are to be able to... You're supposed to be able to petition the governor. Yeah. And you're supposed to be able to get information. Otherwise, we'll go to speech. That's not according to the majority leader of the state Senate. Well... Anyway, you know, okay, who... Well, how? I'm sorry. But privacy apparently is individual right and speeches as well. But the United States Supreme Court came out with a very interesting decision about a year or two ago where it gave the right of freedom of expression to a corporation. Well, what it did, what the majority did was said that a corporation is a person. That's the bottom line. A corporation is a person. Therefore, ergo, a person has a right of free speech. Therefore, the corporation has a right of free speech. And just like citizens, like you and I, are allowed to contribute to certain political campaigns and organizations, corporations have the same right. Right. And restrictions on corporations that are not placed upon individual people is unconstitutional. And not... Not citizens united. Well, and prior to Citizens United, where this right was given to corporations as persons, there was some earlier Supreme Court decisions that actually limited the ability of government to restrict the amount of support that I could give to candidates and to individuals. That's true. And to certain types of political organizations. You know, which is really where the money is now. Right. It's not being sent to the Democratic or Republican National Committee. It's in all of these organizations that you don't even know who's behind them. And who's funding it. Who's funding it. So how does this all, you know, come together? Well, you know, it's tough for me because I'm a free speech person. You know, I believe in free speech, but I don't believe in Citizens United. And I think if you go back and look at some of the Supreme Court cases in which they found in other contexts, corporations are not citizens. Yes. They've decided to ignore that or change their view with a change in court in Citizens United. And I think, unfortunately, that case is going to be with us for a long time as the makeup of the court is becoming more conservative and not likely to be reversed. And you're in my lifetime, maybe. Which brings us to the other right in the First Amendment, which is the idea of the freedom of worship. Well, and that's going to become and is already becoming something that was fairly well dormant. I know there have been cases over the years, but under the Trump administration and under the Republican leadership in states as well as in Congress, religion is becoming the buzzword to allow lots of things that would otherwise have been considered discriminatory. And for example, before the Supreme Court, this term is a very important case in which the Trump administration is supporting a baker in a town in the Midwest who refused to bake a cake for a gay couple's wedding and claimed it was his religious right. And that's before the Supreme Court. And if I had to make a prediction, I think it's going to be 5-4 and I'm afraid it may go in favor of the baker. Under the Obama administration and under Democrats, there'd be no question that they would be arguing that it's discriminatory. And that's just one example that is just front and center on what's going on in promoting the rights of people to maintain conduct which is otherwise discriminatory on a basis that it invades their religious beliefs. Yeah, it's really interesting because Jeffrey Sessions, the U.S. Attorney General, just came out with a memorandum, which is very interesting to me because what he was overturning was a prior memorandum from the Obama administration, which basically followed, I guess, the traditional line that the freedom of worship had to do with belief and it was separate from conduct. And so this current Attorney General is now saying basically what you're saying is you have the hobby case in which they said on religious basis they didn't want to have to fund certain type of medical care that dealt with abortions and, you know, so receptives and in that hobby case the court agreed that the corporation somehow had religious rights because I think it's a privately held corporation, not a publicly held corporation. But this idea of freedom of conduct, freedom to follow my belief. How does that... What about if the baker said he didn't want to serve in African-American? Absolutely. On religious basis. What would this government do? What would the Trump administration do? My guess is Sessions would be conflicted. You know, you'd have a tough time wanting to say, yeah, you don't have to serve it, there are statutes that deal with certain types of conduct in public accommodations. But they don't include lesbians and gays and transsexuals. So how strong is... So isn't there a potential conflict? Of course, there isn't. There's not a potential. There's an absolute conflict. And it's going to raise its head over and over and over. But isn't the right to privacy one way of saying that... The right to privacy was used as a way of allowing abortion. You couldn't question somebody's personal body decisions, right? Right. And does that still apply or...? We'll see. We'll see. You're going to see more and more cases. You see it all the time as more and more states become more and more conservative and they try to chip away at abortion in multiple ways, very imaginative ways of whether to make it illegal without notifying the parents, whether to make it illegal after a certain number of weeks after this or that. And they're going to base it on... So a baker... Baker says, I don't want to bake a cake for a gay couple. Then the person down the street, the realtor down the street says, I'm not going to sell a house to anybody as a shiro. Right. But there are certain things under federal law right now that you can't do because it's discriminatory. But unfortunately, as I said, lesbians and gays, transsexuals, excuse me, transsexuals are not included. So you'd have a tough time if you're a realtor saying I won't sell a house to an African American or... Or a Muslim. You might get away with Muslim unless it's a religion thing. I want to thank you. Nothing would surprise me with the court the way it is, with Congress the way it is and with state governments. We're very lucky that there are two coasts and we're close to the one on the left. That's a good thing. So I want to thank you. Very much for coming here and discussing with us this very important subject given our current political climate. Appreciate it. Thank you very much. Be good. Aloha.