A Cold War-era law in Hawaii that allows authorities to impose sweeping restrictions on press freedoms and electronic communications during a state of emergency could soon be repealed by lawmakers over concerns about its constitutionality and potential misuse.
Those who are worried about the law, which allows a governor or mayor to suspend “electronic media transmissions” during a crisis, say that language could now also be interpreted to include social media posts, text messages and emails, as well as reporting by media outlets.
The Hawaii Association of Broadcasters says the existing law appears to be unique among all 50 states and violates the U.S. Constitution’s First Amendment.
“We get into a situation where … somebody could suspend electronic media because they don’t like what’s being said about them,” said Chris Leonard, the association’s president, who also operates a radio station on the Big Island.
The law appears to date to 1951, when the Cold War pitted the U.S. against the Soviet Union and Hawaii was a U.S. territory, Leonard said. Hawaii became the 50th U.S. state in 1959.
At the time the law was apparently enacted, Leonard said, there were concerns about radio frequency transmitters being used to identify bombing targets.
Current state leaders haven’t invoked the law, but “Who knows who’s in office tomorrow?” he added.
Lawmakers in the state House and Senate have each passed versions of legislation to eliminate the decades-old rule and have a deadline this week to agree on language so the bill can move forward.
Christian Grose, a professor of political science and public policy at the University of Southern California, said the law “gives shockingly large amounts of power to the governor and mayors in ways that might be afoul of constitutional freedoms.”
“That’s sort of an unusual, almost authoritarian law that would allow such powers to be given to the governor or mayor,” Grose said.
Some do support leaving the law on the books.
James Barros, the head of the Hawaii Emergency Management Agency, said the law might still be needed to restrict electronic transmissions “that could trigger an explosive device or ignite volatile chemicals.”
The bill would eliminate the executive branch’s authority to take action that could save lives “based on a hypothetical restriction of free speech rights,” Barros said in written testimony.
The law was revised about a decade ago to its current form, which allows a governor or mayor to: “Shut off water mains, gas mains, electric power connections, or suspend other services, and, to the extent permitted by or under federal law, suspend electronic media transmission.”
Hawaii Emergency Management Agency spokesperson Adam Weintraub said Tuesday the agency agrees technology has evolved beyond what existed when the law was originated. He said the agency hopes to get to a compromise that addresses the broadcaster’s association’s concerns about speech restrictions.
The Hawaii County Council on the Big Island discovered the law last year when it was reviewing its own county code to align it with state law.
Information has helped calm people and make decisions during the 2018 eruption of Kilauea volcano and the COVID-19 pandemic, Ashley Lehualani Kierkiewicz, a county council member, explained in testimony to state legislators.
“In times of emergency and natural disasters, the public needs more information — not less — and communication should flow through all possible channels as frequently as possible,” she said in written testimony.
It’s notable that Hawaii’s lawmakers are considering taking away executive power because the trend in the U.S. government and in some other states has been for the executive to amass power without legislators stopping them, Grose said.
“So the fact that Hawaii’s is doing this is big,” he said.
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