ACLU Wins Artistic Expression Lawsuit On Behalf of Waikiki Street Performers

Affiliate: ACLU of Hawaii
December 28, 2001 12:00 am

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HONOLULU — In a victory for free speech advocates and champions of artistic expression, a district court judge today threw out a local ordinance that unconstitutionally limited the rights of street performers in the city of Waikiki on Oahu.

The legal challenge was originally brought by the American Civil Liberties Union of Hawai’i on behalf of clients who included a musician, a magician and a youth leader from an area church.

Defenders of the ordinance – which restricts performers’ access to parts of the city and stipulates a lengthy permit process — claimed their original intent was to ensure the safety of persons performing around constant pedestrian and vehicular traffic.

“The decision acknowledges that the city’s claim of concern for safety was false. The evidence showed that they wanted the street performers not in locations that were safe but in locations where they would not be able to reach an audience,” said Brent White, Legal Director of the ACLU of Hawai’i.

In her 42-page opinion, Judge Virginia Crandall said the city ordinance violated the First and Fourteenth Amendments to the federal constitution and corresponding provisions of the state constitutions; her ruling permanently blocked the law from taking effect.

The ordinance had been scheduled to go into effect on July 12, 2000, but had been temporarily prohibited after the ACLU filed a legal challenge in June of that year. The measure sought to ban religious, political, and artistic expression in almost all of Waikiki for all individuals, not just street performers, the ACLU argued. For example, the ordinance banned such acts as reciting the bible on the street corner, singing patriotic songs, chanting slogans against the government, and sitting on a public bench strumming the guitar. Individuals who wished to engage in free expression had to apply a month in advance for a permit for one of six remote locations.

The ACLU’s clients included musician Steve Sunn, known as “Sonny Beethoven,” who has been playing the saxophone in Waikiki for almost 20 years; Steve Williams, a street magician; and Shawn Kawelo, who leads the Greater Mount Zion Holiness Church youth group to Waikiki every other Friday where they sing, recite the Bible, and preach as a means of spreading their religious message.

“Today’s decision vindicates our arguments that the city all along had no intention of protecting the rights of street performers but instead intended to eliminate them from Waikiki,”said Earle Partington, co-counsel in the case.

Support for the ordinance came largely from the Waikiki business community. The City Council did not invite testimony from a single street performer.

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