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HB2581 would help protect free speech during crises

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration by the Senate Committees on Commerce and Consumer Protection and Judiciary on Feb. 23, 2024.
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Feb. 22, 2024, 2 p.m.
Hawaii State Capitol
Conference Room 325 and Videoconference

To: House Committee on Judiciary & Hawaiian Affairs
      Rep. David A. Tarnas, Chair
      Rep. Gregg Takayama, Vice-Chair

 From: Grassroot Institute of Hawaii
            Ted Kefalas, Director of Strategic Campaigns

RE: TESTIMONY IN SUPPORT OF HB2581 — RELATING TO EMERGENCY MANAGEMENT

Comments only

Aloha Chair and Committee Members,

The Grassroot Institute of Hawaii would like to offer its comments on HB2581, which would remove the ability of a mayor or governor to suspend electronic media transmissions during a state of emergency.

The current statute dates back to 1951. It was crafted in a very different time when the term “electronic communications” did not encompass the wide range of technologies that it does today.

As written, the law could cover text messaging, phone calls, television, video streaming, email and various forms of social media. Today, these decentralized forms of communication are foundational to the United States’ democratic form of government.

The current statute raises significant questions of constitutionality, and the committee should be commended for acting to address that problem before it can be used to infringe upon civil liberties.

The fact that it remains unclear as to whether a state of emergency could be prolonged indefinitely via supplemental proclamations makes it even more important that the Legislature constrain powers that could affect free speech.

In addition, there is a substantial difference between the suspension of electronic communications as part of a governor or mayor’s emergency proclamation and any action required to disrupt cellular transmissions to prevent terrorist attacks.

The latter example, though extreme, has been raised in the past as an objection to this bill. However, suspension of cellular service is the sole prerogative of the federal government and this bill would not prevent federal officials from carrying out activities necessary for public safety.

HB2581 deals only with the powers of a Hawaii executive under the emergency management statute — that is to say, whether the governor can suspend electronic communications for an indefinite amount of time.

In our 2021 policy brief, “Lockdowns Versus Liberty,” we looked at how the state’s emergency management law could be reformed in light of the lessons learned during the COVID-19 crisis.

One of the points made in that brief is that government accountability is even more important in times of emergency, not less. Instead of imposing blanket prohibitions, government actions during emergencies should be narrowly tailored to demonstrate a connection between the actions and the protection of public health or safety.

Freedom of communication is not only at the core of our constitutional principles, it is also essential to keeping the general public informed on matters of critical importance during crises.

Recent experiences have forced us to reevaluate the state’s emergency management statute. This bill would be a good start toward protecting civil rights and accountable government during an emergency.

Thank you for the opportunity to submit our comments.

Sincerely,

Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii
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