Question: Did you ever find out what law police said prevented the Peace Lady from waving her sign? … Depending on what they say, this could impact other activities.
Answer: Yes, and the statute doesn’t apply, said Mateo Caballero, legal director for the American Civil Liberties Union of Hawaii.
Hawaii Revised Statutes 291c-77a states that “except as otherwise provided by county ordinance, no person shall stand in, walk along, or otherwise occupy a portion of a highway for the purpose of soliciting a ride, employment, business, or contributions from the occupant of any vehicle.”
But Tamara Barrios Montana, known as the Peace Lady, engaged in none of that activity as she waved to motorists on the Pali Highway past Wyllie Street, Caballero said, so the statute “categorically” does not apply. And even if she had, the law is so broad that he questioned whether it would pass constitutional muster if challenged. Caballero also is concerned about selective enforcement.
The government may restrict the time, place and manner of free speech when that serves a significant government interest, but the restrictions must be content- and viewpoint-neutral, narrowly tailored and leave open ample avenues of communication. Those are high bars to meet in any state, and especially in Hawaii, which has a long tradition of roadside political sign-waving, he said.
Montana and another woman independently told Kokua Line that a Honolulu police officer quoted HRS 291c-77a in encouraging Montana to leave the location, where she used to wave signs expressing love and peace during the morning commute.
The woman said she was a passenger in a vehicle that rear-ended the car ahead of it on April 20 because the driver was distracted by Montana, to whom she was blowing a kiss. The car was totaled and she suffered neck and back injuries, she said. As much as she appreciates Montana’s message, she said, the location was unsafe, and she notified police to keep anybody else from getting hurt. She’s relieved that Montana has moved her peace project to parks and beaches away from traffic.
Honolulu Police Department spokeswoman Michelle Yu said the department was unable to verify the officer’s conversation with Montana by deadline. She did, however, affirm the legality of roadside sign-waving. “While it is not illegal, HPD urges citizens to exercise caution if holding signs or otherwise exercising their free speech rights in heavily trafficked areas with fast-moving vehicles.”
Drivers, as always, are urged to keep their eyes on the road and their hands on the wheel, no matter what distractions abound.
We also asked Caballero about responsibility when distracted drivers say sign-wavers, panhandlers or solicitors contributed to an accident.
“We don’t comment on the liability side, which is a little bit beyond our kuleana on the First Amendment and the Constitution, but what I can say is that the fact that you have a right doesn’t mean that you shouldn’t exercise it responsibly. … I view this as two separate issues. One is the First Amendment right of whether the government can tell you not to wave a sign or spread a message at a specific location. But a separate issue is if for any reason something results in someone getting injured, could you be held liable? One is about whether the government can tell you not to be there, and the other is about whether someone else, not the government, can sue you for damages.”
Montana said she does not plan to return to the Pali location.
Mahalo
A big mahalo to the Harada family, who generously paid for our lunch tab at a restaurant in Kaneohe. We were ready to pay the waitress, but she said that the family across from our table had already paid for our lunch. Mahalo and we will pay it forward with the aloha spirit. — Blossom and friends
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