A recent emergency order by Governor Josh Green of Hawaii, which prohibits photography on public lands, has incited controversy and legal action.
James O’Keefe, the founder of O’Keefe Media Group (OMG), brought this order to the limelight through an undercover operation in Lahaina.
The directive, aimed at addressing the aftermath of widespread fires, has been decried as an infringement on First Amendment rights.
“This isn’t merely about the freedom to take photos; it’s about the freedom of the press and the right to hold our leaders accountable,” OMG stated.
Footage from OMG’s investigation captures local law enforcement informing journalists that, due to the governor’s order in response to the fires, photography and video recording on public land is forbidden.
James O’Keefe was even threatened with arrest should he continue filming.
Following these events, OMG announced that they’ve taken legal steps against Governor Green and Maui County.
Explaining his rationale, O’Keefe said the move was to “invalidate the criminalization of protected First Amendment activity and to also strip Maui County of any ability to criminally charge anyone who exercises their First Amendment rights.”
The lawsuit, now before the U.S. District Court of Hawaii, seeks a restraining order against the governor’s move.
It argues that such a decision effectively criminalizes the fundamental rights of free speech and a free press, rights enshrined in both the US and Hawaii Constitutions.
One notable incident involved an unnamed journalist, referred to as John Doe in the suit.
He was criminally charged by the Maui County Sheriff’s Department (MCSD) for taking photos along the Bypass between Kihei and Lahaina on September 1, 2023.
MCSD clarified that their decision was based on Governor Green’s ‘Emergency Proclamations’ related to the Maui wildfires.
The lawsuit argues against this, stating that Governor Green bypassed the Hawaiian legislature and unilaterally criminalized constitutional press rights, according to The Post Millennial.
HRS § 127A-29(a), which refers to emergency period infractions, was cited as the justification for these actions. It mentions, “Any person violating any rule of the governor . . . prescribed and adopted pursuant to this chapter and having the force and effect of law shall, if it shall be so stated and designated in the rule, be guilty of a violation, petty misdemeanor, or misdemeanor.”
The lawsuit counters this, saying the governor lacks the authority to set such rules, especially those that may conflict with the U.S. Constitution under the Supremacy Clause and the preemption doctrine.
Furthermore, the suit claims that Governor Green’s order, as enforced by the police, violates the Fourteenth Amendment’s Due Process Clause, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Notably, even members of the Hawaii National Guard expressed disapproval of Governor Green’s directive, as revealed in OMG’s undercover footage.
