Hawaii Takes Aim at the First Amendment

Earlier this year, the Supreme Court smacked down Hawaii’s assault on the Second Amendment in Wolford v. Lopez. Now, another liberal law in the Aloha State which takes square aim at the First Amendment could be headed for a similar fate.

Back in May, Democrat Governor Josh Green signed Act 11 into law, legislation which, as libertarian outlet Reason reported, makes it so that “all corporations – except for political action committees, political parties, and candidate committees – cannot fund initiatives on ballot measures, support proposed amendments, or contribute money to campaigns.” Act 11 specifically states that corporations no longer have the “power to spend money or contribute anything of value to influence elections or ballot measures” in Hawaii.

Americans familiar with Supreme Court history will immediately recognize that Act 11 is a direct challenge to the 2010 case Citizens United v. FEC.

That case arose after the conservative nonprofit Citizens United sought to distribute Hillary: The Movie, a film critical of Hillary Clinton, shortly before the 2008 Democrat primaries. Federal law at the time restricted corporations and unions from using their own treasury funds for certain election-related communications.

In a 5-4 decision, the Supreme Court ruled that the First Amendment protects independent political spending by corporations and unions. The Court struck down limits on such expenditures while leaving disclosure requirements and the ban on direct corporate contributions to candidates intact. The ruling established that the government generally cannot restrict independent political spending based on the speaker’s corporate identity.

Since then, liberals have obsessively railed against Citizens, claiming that it supposedly undermines elections and corrupts the political process. They continue to insist that the ruling must be overturned.

But Hawaii Democrats apparently aren’t content to let the legal process play out. Act 11, which is set to go into effect on July 1, 2027, directly violates Citizens. In doing so, it tramples the speech rights of a broad spectrum of political activists, including labor unions, gun rights supporters, and environmentalists – not just liberal bogeymen like big corporations and shady nonprofits.

The Grassroot Institute of Hawaii, a nonprofit that engages in political advocacy and voter education, is now suing the state in federal court over the law. As Reason also reports, “The nonprofit is asking the court to void the law as a violation of the First and 14th Amendments” and “has also filed a motion for a preliminary injunction to prevent Hawaii from enforcing the law while the court process plays out.”

The Grassroot Institute warns that Act 11 bars organizations “from spending money to speak for or against candidates, ballot measures or political parties, on penalty of losing their right to operate in Hawaii.” Of course, major media companies – including liberal activist newspapers – are exempted from the restrictions.

This means that editorial boards and commentators can continue to serve as mouthpieces for the leftist agenda, but conservative groups would be limited in offering their own commentary or sharing information with voters.

Anything that appears to even “indirectly” oppose a candidate could trigger a state investigation and shutdown of a group’s nonprofit status under Act 11. A think tank could be in violation if it publishes an article that mentions how a politician opposed a cap on property taxes or voted to raise utility rates.

Act 11 is such a blatant attack on the First Amendment that even some liberal voices are speaking out against it. The Grassroot Institute notes that labor unions – normally friendly to Democrat initiatives – oppose the legislation. Democrat Attorney General Anne Lopez has all but admitted that the law is unconstitutional, stating during submitted testimony before the legislature that Act 11 includes “a content-based speech restriction that disfavors political speech” and attempts “to take away a corporation’s right to speak.”

“While the Department sympathizes greatly with the frustration with federal caselaw on this subject, this bill raises serious constitutional concerns and substantial adverse litigation risk should it pass into law,” her testimony concluded.

Other experts have reached similar conclusions about Act 11’s blatant violation of the First Amendment and Supreme Court precedent.

Act 11 “silences ordinary voices,” according to Bradley Smith. He’s the former chairman of the Federal Election Commission and chairman of the Institute for Free Speech, which filed the lawsuit.

“The only voices left belong to media institutions, politicians and wealthy individuals who have enough money to make themselves heard on their own,” Smith wrote in the Washington Post. “But this scheme violates federal law … Citizens United recognized a foundational principle: People do not forfeit their First Amendment rights when they act as a group.”

Renowned attorney James Bopp, who represented Citizens United in the famed 2010 case, reached a similar conclusion. He said the law is “absurd” and “so fraught with unconstitutional provisions, it’s almost shocking that someone would propose it,” according to comments published in Reason.

But Hawaii has repeatedly proven that it is more than willing to defy the Supreme Court and federal law. It ignored the clear Court precedent on the Second Amendment to pass an illegal backdoor gun regulation scheme that the Court found unconstitutional in Wolford. A defiant state supreme court said it plans to flout the U.S. Supreme Court in the future as well, according to a lengthy screed issued as part of an unrelated case about DNA evidence.

Hawaii may be nearly 5,000 miles away from the steps of the Capitol and the Supreme Court, but that does not give it veto power over the U.S. Constitution. As much as Democrats may not like it, the First and Second Amendments are not up for negotiation, and respecting citizens’ constitutional liberties is not optional.