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Why Hawaiian Flags, Parking Tickets, Arrests Are Raising Free Speech Questions

Ku'uwehi Hiraishi/HPR
Flag-laden vehicles await the beginning of the Sept. 8, 2019, cross-island convoy on O'ahu.

There’s been a noticeable spike in Hawaiian flags seen on roads and highways. Many of the drivers are showing support for the protest on Mauna Kea and other land disputes. But authorities' crackdown on the flags on vehicles, along with parking tickets on the mountain and arrests in Kahuku are raising the question: where is the line between the law and free speech?

Honolulu police ticketed Kapolei resident Annie Pedro and her husband about a week ago after they flew a Hawaiian flag on their Toyota Tacoma. The citation came during a cross-island convoy supporting demonstrations on Mauna Kea and in Waimanalo and Kahuku.

“We were aware 'cause they had it on the news that starting just so happens, starting this weekend, they were gonna cite people with the flags,” said Pedro. “So, you know, how they say it couldn’t go past your vehicle? So my husband put it in the middle so, when it blows, it would just blow in the bed of the truck.”

Nonetheless, the couple got cited. Nearly 100 motorists received tickets that day based on various traffic offenses, including those related to the flags.

Convoy organizer Jamie Rodrigues feels partly responsible, explaining it is “as if we helped HPD to gather all these people who expressed themselves with flags to be specifically targeted and ticketed that day.”

On Friday, Honolulu Police Deputy Chief John McCarthy said motorists were cited for violating a state law prohibiting obstruction while driving and were not selectively handed tickets.

“I can't tell you the difference between free speech and the law. That?s something you gotta go get on your own,” said McCarthy. “But I can tell you we are not targeting anyone. What we are targeting is violations of the law for obstruction.”

Under state law, a motorist must have a clear view while operating a vehicle. The fines for violations range from $70 to $97.

Prior to the latest convoy, HPD took to social media to remind motorists of the law. This followed numerous complaints and inquiries received from the public about large flags and banners flown from vehicles, the department said.

Andrea Freeman, University of Hawai?i William S. Richardson School of Law professor, teaches constitutional law. She said the situation with the flags poses some serious First Amendment concerns.

“The way I view the situation is completely one of harrassment and of oppression,” said Freeman. “The idea that this is about obstructing traffic or safety is really just a pretext because it's not something that we've seen consistently. You know, protectors are on the mauna and more protectors are gathering. I think this is a backlash to that.”

She said similar concerns were raised on the Big Island when authorities began erecting “no parking” signs along the Daniel K. Inouye Highway at Mauna Kea Access Road where a protest continues against construction of the Thirty Meter Telescope.

Hawai?i Island Mayor Harry Kim said police took action because of the large number of people assembled, not because of the reason they gathered.

“All those 'no parking' signs was because of the tremendous safety problem of people parking alongside of the road,” said Kim. “Please remember, you’re along a 60 miles per hour ... area and thousands of people started to come.”

Hawai?i County police said they have issued more than 6,500 traffic citations at the base of Mauna Kea since July, none related to the flying of flags.

On Maui and Kaua?i counties, police say they have noticed an increase in flags flown from vehicles but have not issued any citations.

Kaua?i Police Chief Todd Raybuck told HPR that police have the ability to enforce the law on flags on vehicles if they present a justifiable safety hazard.

“The safety of our roads, along with the public’s constitutional right to free speech, are both important priorities we will continue to uphold when enforcing the law,” said Raybuck.

On Maui, Mayor Michael Victorino said he supports the community's first amendment rights and political expression, adding, "and I continue to ask our residents to also be mindful of the safety of themselves and others.”

He made the comments in an “Ask the Mayor” column for online news organization Maui Now in responding to a question about how Maui police are dealing with the recent increase in flags flying from vehicles.

UH professor Freeman said flags in particular have a history as symbols that are valued, cherished, and respected.

“Whether it's being used for free speech because you want to burn a flag or because you want to fly a flag, your rights are protected either way,” said Freeman.

Annie Pedro doesn’t feel like her rights are protected, and she doubts law enforcement will stop at flags. “I mean, what are they gonna say is next?”

Like many expressions of support and opposition surrounding controversial issues, this one could well end up in court. 

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