Hawaii’s New Speech Ban Puts Everyone at Risk

The Kamehameha Statue in Honolulu

When lawmakers decide that some Americans may speak about politics and public issues while others may not, the First Amendment is relegated to secondary status.

That is the core issue in a new lawsuit challenging Hawaii’s Act 11, a law that bars a broad range of organizations from engaging in political and ballot-measure advocacy. The plaintiff, the Grassroot Institute of Hawaii, argues that the law violates the First Amendment by preventing nonprofit organizations, businesses, associations, and other groups from speaking about candidates, elections, and ballot initiatives. 

At first glance, some may shrug. After all, corporations are not exactly a sympathetic constituency. But that misses the point.

The First Amendment protects people. And people often join together in organizations to make their voices heard.

The NAACP, the Sierra Club, the National Rifle Association, labor unions, chambers of commerce, churches, civil-rights organizations, and countless local advocacy groups all rely on the ability of individuals to pool resources and speak collectively. All are “corporations.” Restricting the speech of organizations inevitably restricts the speech of the people who make up those organizations. 

According to the complaint, Hawaii’s law goes far beyond regulating campaign contributions. It broadly prohibits many organizations from spending money or resources to support or oppose ballot measures and other political causes. The law also authorizes severe penalties, including revocation of an organization’s legal status, termination of state contracts, and even involuntary dissolution. 

That is a level of speech coercion worthy of King George III. Whether one agrees with the Grassroot Institute’s views is beside the point.

Imagine a future legislature deciding that environmental groups cannot campaign for a ballot initiative. Or that pro-life organizations cannot advocate for a constitutional amendment. Or that business associations cannot oppose a tax increase. Or that labor unions cannot seek a change in labor law.

Once government acquires the power to decide which organizations may participate in public debate, every group becomes vulnerable when political winds shift.

The danger is particularly acute when ballot measures are involved. Ballot initiatives are one of the purest forms of democratic self-government. Citizens are asked to decide major policy questions directly. To make informed decisions, voters need to hear arguments from every perspective.

The lawsuit also raises another troubling issue: speaker discrimination. According to the complaint, Hawaii’s law exempts traditional media organizations, allowing newspapers and broadcasters to continue publishing editorials and commentary on candidates and ballot measures while restricting many other organizations from engaging in similar advocacy. 

The First Amendment was designed precisely to prevent government from deciding which speakers are trustworthy and which are not. Government officials should not be empowered to pick favored participants in public debate while silencing others.

Americans regularly disagree about politics. We disagree about taxes, education, energy policy, public health, immigration, and countless other issues. The answer to those disagreements is not to narrow the range of voices in the public square. It is to widen it.

The principle at stake in this case extends far beyond Hawaii. Today, one state may target think tanks, nonprofits, or business organizations. Tomorrow, another state could target labor unions, advocacy groups, or religious organizations.

A government that can decide who gets to speak about public affairs possesses a power fundamentally at odds with the First Amendment.
​
In a free society, citizens retain the right to join together, advocate for causes they believe in, and persuade their fellow Americans. That principle protects every viewpoint, not just the popular ones. And it is worth defending, no matter who happens to be speaking.

DONATE & HELP US DEFEND YOUR FIRST AMENDMENT RIGHTS