Honolulu, Hawai‘i: On Friday, March 20, 2020, three nonprofit organizations — the American Civil Liberties Union of Hawai‘i (“ACLU of Hawai‘i”), the Japanese American Citizens League, Honolulu Chapter (“JACL Honolulu”), and the Iwamoto Family Foundation (“IFF”) — filed an amicus brief in the Hawaiʻi Supreme Court in defense of the speech and privacy rights of people and groups engaged in political advocacy.
The “friend of the court” brief supports a petition for writ of mandamus filed by donors to the nonprofit KAHEA: The Hawaiian-Environmental Alliance, which seeks to vacate a Circuit Court order allowing the State of Hawaiʻi Attorney General (“AG”) to obtain, via subpoena, a broad swath of KAHEA’s bank records, including those that would reveal the identities and private information of KAHEA’s donors.
The brief argues that the Circuit Court did not consider important constitutional questions before allowing the AG to obtain these financial records, and that the AG’s subpoena threatens rights protected under the U.S. and state constitutions. The brief specifically argues that the AG did not provide sufficient justification or evidence for issuing a subpoena seeking all of KAHEA’s bank records, and that the subpoena instead appears to have been issued as retaliation against KAHEA for advocating in support of demonstrations against the Thirty Meter Telescope on Mauna Kea. The brief also observes that the subpoena against KAHEA was the latest in a string of subpoenas served by the AG on entities that supported anti-TMT demonstrations, and that it did not appear that the AG served any subpoenas on people who support the TMT.
While the brief does not take a position on the Thirty Meter Telescope, it raises concerns that other people or organizations engaged in political advocacy may be deterred from doing so if the AG is allowed to obtain the bank records.
Wookie Kim, ACLU of Hawaiʻi Staff Attorney, said: “There’s a reason the First Amendment comes first. If we are unable to speak or advocate freely around controversial public issues without fear of governmental retribution, then our system of government is doomed. The AG here did not meet the high burden imposed by the federal and state constitutions, so the Circuit Court was wrong to let the AG infringe so deeply on core First Amendment rights of KAHEA’s donors.”
Geoff Sogi, JACL Honolulu President, said: “If the Hawaiʻi Supreme Court does not vacate the Circuit Court’s order, our organization, and others like it, will be less free to take positions unfriendly to the government, unless they are willing to risk being targeted by the AG for an investigation. The JACL Honolulu has a long history of standing up against misuse of government power, and it is doing so again here.”
Kim Coco Iwamoto, IFF President, said: “The AG’s actions and the Circuit Court’s ruling undoubtedly intimidates people from donating to or associating with organizations engaging in protected political advocacy. If the Circuit Court’s ruling stands, the chilling effect created by the subpoena will extend beyond KAHEA to all nonprofit organizations who have said anything that the government dislikes. IFF is taking a stand for the First Amendment and privacy rights of all people who wish to make donations to advocacy organizations.”
