The O’Keefe Media Group Files Lawsuit Against Hawaii Governor and County of Maui
The O’Keefe Media Group has taken legal action against Hawaii’s Democrat Governor Josh Green and the County of Maui for their ban on taking photographs on public land.
The lawsuit, filed at the U.S. District Court for the District of Hawaii on Sept. 14, accuses Governor Green of violating the plaintiffs’ free speech and free press rights. The case revolves around an incident that occurred around Sept. 1, when journalist James O’Keefe and another individual, referred to as John Doe in the lawsuit, were taking pictures along the bypass between Kihei and Lahaina in Maui. The lawsuit states, “Despite John Doe’s well-established First Amendment right to report on matters of public concern, Maui County, by and through its Sheriff’s Department (MCSD), criminally charged John Doe for his journalism.”
MCSD officials informed John Doe that the criminal charges against him were not based on any law, but on “Emergency Proclamations” issued by the governor in response to Maui wildfires. According to the lawsuit, these proclamations turned John Doe’s “constitutionally protected First Amendment activity into a crime.”
Around Sept. 12, the O’Keefe Media Group sought clarification from Maui County officials regarding their right to report on matters of public concern.
“In response, MCSD advised that the ‘Emergency Proclamations’ issued by Governor Green made it a crime to take photographs, even though such activity, as MCSD conceded, falls squarely within the rights afforded by the First Amendment to the U.S. Constitution.”
When asked about the law that grants the governor the power to criminalize actions protected by the First Amendment, MCSD officials cited HRS Section 127A-29(a).
The section in question pertains to “emergency period infractions.” It states that individuals who violate any rule imposed by the governor or mayor during an emergency period may be charged with a crime.
If these rules do not explicitly state the offense and penalty, individuals found in violation can face fines of up to $2,000 and imprisonment for up to a year.
The lawsuit argues that “Governor Green does not have the authority to create his own rules.” Furthermore, even if he did, “any rule he issues must not infringe upon the rights guaranteed by the United States Constitution, as stated in the Supremacy Clause and the preemption doctrine.”
Even if HRS Section 127A-29(a) somehow grants the governor the power to unilaterally create rules, he is still obligated to do so within the limits set by the Due Process Clause of the Fourteenth Amendment, according to the lawsuit.
A missing person flyer for Joseph “Lomsey” Lara is posted on the door of a business in a shopping mall in Lahaina, Hawaii, on Aug. 21, 2023. (Jae C. Hong/AP Photo)
The Due Process Clause clearly states, “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.”
The lawsuit also accuses HRS Section 127A-29(a) of violating the “vagueness doctrine of the Fourteenth Amendment.”
“The statute under which John Doe was charged fails to explicitly and clearly define punishable conduct,” the lawsuit points out.
“John Doe is entitled to know with certainty what conduct is punishable and what conduct is not punishable. It is beyond dispute that HRS § 127-A29(a) fails to provide John Doe with such clarity.”
Free Speech Curb, Government Overreach
In a Sept. 15 post on X, Mr. O’Keefe shared a video showing the warning he received from Maui police officials regarding taking pictures, along with other related events.
In the video, a Hawaii Deputy Sheriff justifies the photography ban, citing safety concerns. “It’s not like they’re trying to hide anything, but it’s actually an emergency thing down here,” he explains.
Mr. O’Keefe then speaks with a Hawaii Army National Guardsman about the rule against taking pictures. The guardsman dismisses the validity of the rule.
“Anybody can take pictures. No one can stop you from taking pictures,” the guardsman asserts. When asked about an officer threatening arrest for taking pictures, the guardsman responds, “Yeah, he’s kind of pushing and puffing the chest.”
Another guardsman, who is also a police officer from Honolulu, confirms that Mr. O’Keefe is free to take pictures. Regarding the officer’s arrest threat, the guardsman remarks, “they’re probably just being [expletive].”
The lawsuit has been filed by attorney Mike Yoder, who emphasizes the importance of press freedom. “If we don’t have the freedom of the press, we don’t have the freedom of speech, and people are kept in the dark as to what the government’s doing and what is going on, then there’s no way to ever have a people-led or people-controlled society,” Yoder states.
The nonprofit group ”People Helping People” has raised concerns about Governor Green’s “unchecked power” under the emergency declaration and has established a legal fund to protect Maui residents from government overreach.
HRS Section 127A-13 grants the governor several powers during an emergency, including the ability to quarantine or segregate individuals believed to be infected by a disease posing a public danger, suspend laws that hinder emergency functions, suspend electronic media transmission, and adjust voting hours.
The Maui wildfires have resulted in 115 confirmed fatalities, burning through thousands of acres of land and destroying numerous buildings. Officials are currently identifying the first zones in the County of Maui where residents will be allowed reentry once hazardous materials are cleaned up.
Why does the lawsuit argue that the ban on photography is not justified by the Emergency Proclamations?
D, is protected under the First Amendment,” the lawsuit explains.
The lawsuit argues that the ban on taking photographs on public land infringes upon the plaintiffs’ rights to free speech and free press, which are fundamental pillars of democracy. By criminalizing photojournalism, the defendants are inhibiting the plaintiffs’ ability to gather and disseminate information to the public, stifling open discourse and preventing the public from being fully informed about matters of public concern.
Furthermore, the lawsuit contends that the ban on photography is not justified by the Emergency Proclamations issued by Governor Green. While the proclamations were intended to address the Maui wildfires, they should not be used as a pretext to suppress the rights of journalists and photographers who play a crucial role in documenting and reporting on such events. The ban represents an overreach of governmental authority and an infringement on the plaintiffs’ protected rights.
The O’Keefe Media Group, led by founder James O’Keefe, is well known for its investigative reporting and advocacy for transparency in government. The group has been instrumental in uncovering corruption and abuse of power, often using visual evidence to support its findings. The ban on photography directly impacts the group’s ability to continue its important work, leading them to pursue legal action against Governor Green and the County of Maui.
This lawsuit is not only about defending the rights of the O’Keefe Media Group, but also about protecting the freedom of the press and the public’s right to access information. In a democratic society, the ability of journalists and photographers to document and report on events is essential for holding those in power accountable and ensuring transparency. Any attempt to suppress or criminalize such activities undermines the very foundations of democracy and hinders the public’s ability to make informed decisions.
The outcome of this lawsuit will have far-reaching implications for the rights of journalists and photographers nationwide. It will set a precedent for how governments and law enforcement agencies can regulate and restrict the activities of those in the media industry. The case will test the boundaries of the First Amendment and determine whether the government can impose bans on photography without a compelling justification.
In the face of this legal challenge, it is crucial for individuals and organizations that value freedom of the press to show their support for the O’Keefe Media Group and their fight against the ban on photography. This case serves as a reminder of the importance of a free and independent media in a democratic society, and the need to defend and uphold the rights of journalists and photographers to fulfill their vital role.
As the legal proceedings unfold, it is hoped that the U.S. District Court for the District of Hawaii will uphold the plaintiffs’ rights and strike down the ban on photography. This decision would not only vindicate the O’Keefe Media Group but also reaffirm the importance of a free press in safeguarding democracy. It would send a powerful message that attempts to limit and control the flow of information will not be tolerated in a society that values freedom of speech and expression.
Ultimately, this lawsuit is about more than just one incident in Maui. It is a battle for the protection of the rights and freedoms that underpin our democracy. The outcome of this case will shape the future landscape of journalism and have a lasting impact on the ability of journalists and photographers to fulfill their vital role in society.
It is our collective responsibility to stand up for the principles of freedom of the press and fight against any attempts to undermine them. Supporting the O’Keefe Media Group in their legal battle is a crucial step towards upholding these principles and ensuring a society where truth, transparency, and accountability prevail.
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