Non-public forum
By ddepledge
State Senate staffers are still smarting over the state’s $100,000 settlement with Mitch Kahle — an atheist activist — for a scuffle after Kahle was forcibly removed from the Senate gallery for protesting an invocation on the last day of session in April 2010.
Kahle, who was acquitted of disorderly conduct, filed a federal lawsuit that included claims the Senate staff violated his First Amendment right to freedom of speech. Kevin Hughes, an ally of Kahle’s who recorded the incident on video and was caught up in the scuffle, was also part of the lawsuit.
Senate staffers countered that Kahle had no First Amendment right to speak because the Senate chamber is a non-public forum.
U.S. District Judge Leslie Kobayashi, in a January ruling, agreed that the Senate chamber is not a public forum. But that does not necessarily mean that protesters such as Kahle have no free speech rights.
From the ruling:
The Court takes judicial notice pursuant to Fed. R. Evid. 201(b)(1) and (c)(1) of the nature of the proceedings that occur in the Senate Chambers while the Senate is in session and finds that it is a non-public forum. That fact, however, does not mean that Kahle had no free speech rights when he attended the session. The Ninth Circuit has recognized that:
In a nonpublic forum, our scrutiny is less exacting: “In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers’s view.” [Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,] 46, 103 S. Ct. 948 [(1983)]. Such sparing treatment stems from the oft-recognized principle that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” Id. (quoting [United States Postal Serv. v. Council of] Greenburgh [Civic Ass’ns], 453 U.S. [114,] 129, 101 S. Ct. 2676 [(1981)]); see also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992); United States v. Kokinda, 497 U.S. 720, 725, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (plurality op.).
Under this analysis, the primary issues relevant to Kahle’s free speech claims are: whether Kahle was ejected from the Senate Chambers pursuant to a complete, content-neutral ban on public speech during the Senate session; and whether that ban was reasonable. The allegations in the First Amended Complaint and the representations in the parties’ filings in connection with the instant Motion reveal that there are disputed issues of material fact on these issues, and the Court cannot say that the State Defendants are entitled to judgment as a matter of law on Kahle’s free speech claims.
Political Radar
March 30th, 2012 at 4:40 am
Something is wrong in the Senate. I am glad that Judge Kobayashi struck a blow for freedom and for the public’s rights. It seems these days that some Senators forget that they are there to do the people’s business. Apparently the Senate staff has issues too. Too bad.
March 30th, 2012 at 6:50 am
State senate staffers are smarting?! The taxpayers of Hawaii should be smarting and should be ticked off that the senate folded like a cheap fan.
March 30th, 2012 at 10:07 am
Freedom of Speech within a limit of freedom. If you want to say something, say it one’s face. If you slander one, you could get sued. Other way is you may get a black eye.
Freedom of Speech only if you are willing to suffer the consequences.
March 30th, 2012 at 11:23 am
This intolerant hate monger should be prosecuted for blackmail and exhortation not given $100,000.00 of taxpayers money. His actions against Marc Alexander and the threatening ofthe Abercrombie administration with blackmail should be prosecuted by Keith Kaneshiro and the Prosecutors office.
He stalks New Hope workers on weekends trying to catching them setting up church services to early.
He disturbed the City Christmas ceremony.The state is opening pandora’s box by eve considering to buy him out with the $100,000 hush money. He will not stop there and he will continue his vendetta against religious freedom and the first amendment.
March 30th, 2012 at 3:12 pm
Even if the SSAA was within his power to eject Kahle for his outburst, there certainly is a question as to whether and what use of force was appropriate and whether he could act against Hughes for filming that ejection. That is perhaps what you get when you have a pugilist for a Sergeant at Arms, not a trained parliamentary official. But, then, that’s like a lot of things, right? It’s not what you know, it’s who you know.
March 30th, 2012 at 5:45 pm
believe judge kobayashi misinterpreted the 9th Circuit Court case cited. Kahle was not a member of the senate nor was he an invited guest. He was there merely to impose his beliefs (athiest) upon the senate proceedings. He was not recognized as an authorized speaker, so his sudden interruption was out of order. Hence, he had no right to interrupt the meeting and the senate’s actions to halt his actions were proper and reasonable. Believe the senate uses the “Roberts rule of order” in the meetings. Under these rules anyone who does not abide by its rules can be denied a voice. Kahle did not observe these rules and was properly and rightly restrained and silenced. To allow someone to impose himself in such a meeting without observing procedures is making a mockery of the system. Free speech is a constitutional right but it must follow reasonable and fair practices (ie. no one can or should shout “fire” in a crowded movie theater.
March 30th, 2012 at 9:26 pm
this guy is very passionate about his atheism.good for him.just in time for easter.
March 30th, 2012 at 9:59 pm
Only a missionary would call those who are not missionaries, a pagan or racists. If you want someone to fail and get in trouble, spread rumors. Seems that is what an American does.
April 2nd, 2012 at 11:29 am
Hawaii Taxpayers lose again, Felix consent decree, blow hole, hiking trials, Saddle road. Mitch needs some Aloha slapped into his head.
Obviously he hasn’t learned the ways of Hawaii and we are allowing his kind to kill the spirit…come on locals….step it up or they will take over the islands or maybe it’s too late ?
Only a jerk would interrupt a defenseless clergy person who was invited to provide sincere and caring message to our Senators.