Even as lawmakers haggled and disagreed over the details of SB2471, there was one thing they agreed upon, and said aloud consistently: "This is going to get us sued."
Gov. Josh Green signed SB2471 into law as Act 11 on May 14. On Friday, Grassroot Institute of Hawai‘i filed a lawsuit, challenging it as unconstitutional.
You can read the suit in its entirely here.
The leftwing, Mainland-based think tank, Center for American Progress, was essentially the co-author of SB2471, guiding Hawai‘i lawmakers to be the first among more than a dozen states that would try to nullify Citizens United, the U.S. Supreme Court decision that upheld the freedom of people organized as corporations to engage in political speech.
The state attorney general's office warned Legislators repeatedly that CAP's legal strategy was entirely too clever for its own good, nevertheless, the suit names Hawai‘i Attorney General Anne E. Lopez, as well as Nadine Ando, Director of the state Department of Commerce and Consumer Affairs, as defendants — in their official capacities — because they're the ones that Act 11 empowers to punish organizations for engaged in "electioneering" when the law takes effect next July.
Those punishments can be quite severe, including the total dissolution of any organization that runs afoul of Act 11.
ASD readers might recall a conversation I had with Dr. Keli‘i Akina, president of GIH, last month, discussing the ways SB2471 might chill free speech in Hawaii‘i. At the time, the bill had passed but not yet been signed. We discussed how, while lawmakers talked about ending "dark money" and keeping unnamed, big-money corporate powers out of Hawai‘i politics, it seemed, in practice, more likely to hurt small, local organizations.
That is, in fact, the tact the lawsuit takes. “This law doesn’t affect just the Grassroot Institute,” said Akina, in statement Friday announcing the suit. “It affects every Hawai‘i resident who wants to join with others to speak out on issues that impact their community. It doesn’t matter what the issue is or which side of it the organization is on. This law prevents citizens from organizing and pooling resources, time, and effort to speak on topics of public concern.”
GIH is represented by the Institute for Free Speech, see its case file on the lawsuit here.
“Act 11 is one of the most sweeping attacks on political speech we’ve seen in years,” said Institute for Free Speech Senior Attorney Owen Yeates, the lead litigator on behalf of the Grassroot Institute, in a statement. “Americans have a constitutional right to join together through nonprofits and other associations to advocate for the causes that matter to them and their communities. Moreover, Americans have a right to decide for themselves which voices they want to hear. Act 11 strips those rights from the residents of Hawai‘i.”
The statement goes on to note that, "The lawsuit argues that Act 11 violates the First Amendment’s protections of free speech, freedom of association, freedom of the press, and freedom of petition and assembly. It further argues that key provisions of the law are unconstitutionally vague, leaving organizations unsure of where the line between lawful advocacy and prohibited activity lies."
"Act 11’s requirements and penalties present a substantial threat to the First Amendment rights of organizations such as the Grassroot Institute," said Institute for Free Speech. "Grassroot regularly publishes research, hosts events, and communicates with the public about legislation, ballot measures, tax policy, housing reforms, government accountability, and other issues vital to Hawai‘i residents.
"The organization’s speech often includes communications that identify elected officials’ policy positions. Under Act 11, this core advocacy could be treated as prohibited 'election activity,' placing the organization in jeopardy for speaking about the very issues it was founded to address. It does this by prohibiting any spending to 'directly or indirectly … support or oppose a candidate — terms so broad that even routine legislative education and advocacy mentioning elected officials could trigger enforcement.
"Those aren’t Act 11’s only defects. Even as the law imposes these severe and broad restrictions, it simultaneously carves out an exemption for certain corporations: namely, institutional press entities, such as newspapers, broadcasters, and periodicals. But the government cannot selectively determine which speakers enjoy First Amendment rights and which do not."
Some of these issues are ones we've raised directly with the lawmakers who created SB2471. Looks like the state will now have to defend their arguments in court.
The lawsuit "seeks declaratory and injunctive relief preventing the enforcement of Act 11."
ASD will have more on this suit in the days ahead.
A. Kam Napier is editor in chief of Aloha State Daily. His opinions in Pipikaula Corner are his own and not reflective of the ASD team.
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A. Kam Napier can be reached at kam@alohastatedaily.com.
