House bill meant to limit governor’s emergency powers could be vetoed

A House bill passed during the legislative session that would reign in a Hawai‘i State governor’s emergency powers is slated to be vetoed.

HB 2581, which removes the ability of a governor or county mayor to suspend electronic media transmission during a state of emergency, was among the 17 bills on Gov. Josh Green’s intent to veto list despite the measure having unanimous support through all its committees and both the Senate and House of the Legislature as well as strong public support.

As a result, media groups in the state are speaking out against the potential veto action saying the current statute is government overreach.

Some examples where Green might want to use his powers to shut down media communications include extreme violence or acts of terrorism. The governor has until July 10 to decide whether or not to kill the bill.

The Hawai‘i Association of Broadcasters, an industry trade association representing Hawai‘i’s free, local, over-the-air commercial radio and television stations, stated in a press release that suspending electronic media transmission by state or county authorities is not permitted under any federal law.

“The Governor or Mayors’ ability to suspend any and all ‘electronic media transmissions’ during a state of emergency creates a clear prior restraint on lawful free speech and publication, and violates the First Amendment as upheld by the United States Supreme Court,” stated Chris Leonard, President of the Hawai‘i Association of Broadcasters. “The current statute clearly represents government overreach in granting the state and county government a ‘blank check’ to shut down all electronic media transmission without providing an explanation for why this is necessary, what systems are affected, for how long, and how decisions would be made.”

HB 2581 offers an edited version of the current statute, 127A, that removes the unlawful additional governor and mayoral powers related to suspending electronic media transmission in a state of emergency.

“We are very concerned that we have a law on the books that jeopardizes public safety and our ability to deliver a vital lifeline to the public,” Leonard said, adding a simple edit to the current statute would allow broadcasters and media agencies to continue to deliver potentially life-saving information and keep communities informed during a state of emergency, “a time when we need more, not less communication.”

Hawai‘i County Mayor Mitch Roth said he couldn’t imagine a time when they’d want to use this power to suspend radio communication or why they would want to.

According to Green’s veto rationale, he would prefer lawmakers continue their work on the bill looking at a more balanced approach.

Blake Oshiro, senior advisor to the governor said: “At all times including emergencies, Governor Green believes the dissemination of accurate and responsive information to the public through all forms of media, as soon as possible, is crucial.

“Counsel from the Hawai‘i Emergency Management Agency is that very limited circumstances may exist in which the suspension of electronic media will help law enforcement or emergency management deal with a threat, such that the decision on finding that balance between protecting communities and public safety, with full and transparent media, should lie with the governor.”

Hawai‘i Island police chief Ben Moszkowicz said: “I would be hard-pressed to imagine a realistic scenario where a public safety emergency would warrant the suspension of electronic media communication.”

However, the chief added he couldn’t say it would never happen.

While people’s right to speech is protected by the First Amendment, Moszkowicz said that right is not absolute.

“You cannot shout ‘fire’ in a crowded theater,” he said.

The Big Island Press Club, also spoke out against the potential veto of HB2581 said the club worked with legislators for several years on the bill ensuring a reasoned and balanced measure that satisfies the public’s right to know while acknowledging agency concerns.

According to a press release from the nonprofit last week, journalists fear the current law could be interpreted by some leaders as a “kill switch” of sorts that would prevent journalists from reporting news during an emergency.

“The hunger for fact‐based information is never more intense than during an emergency, and when that information is hard to come by, people often resort to rumors and speculation,” said BIPC President Tiffany Edwards Hunt. “One would think that’s the last thing the government would want in a declared emergency.”

Pacific Media Group, which owns and operates radio stations throughout the state and operates digital news sites – Maui Now, Kaua‘i and Big Island Now – says they have an unwavering commitment to serve communities in times of emergency.

“Our local reporters and news staff work tirelessly to provide accurate real-time updates and potentially life-saving information during times of emergency and disaster,” said Pacific Media Group CEO Jack Dugan. “It would be a consequential mistake for our staff to be restricted in keeping our communities informed.”

Rep. David Tarnas voted to pass HB2581 when it was discussed in the Judiciary and Hawaiian Affairs Committee in February. On Friday, he said he’d rather the governor not veto the measure and believes Hawai‘i Emergency Management Agency influenced Green’s decision to include the bill on the intent to veto list.

During the legislative session, HI-EMA submitted testimony urging lawmakers to reference a previous bill with the same intent in order to fully understand the potential impact of the current revision. By starting from the previous language, the agency stated it would ensure continuity and unnecessary duplication of efforts.

Throughout the session, Tarnas said there were no recommendations from HI-EMA on language to include in the latest bill. On Friday, the lawmaker said he wasn’t happy with how HI-EMA let things go during the discussion of the measure last year.

“The governor must be siding with HI-EMA’s outdated approach by this,” Tarnas said. “We need to have that open free flow of information.”

If the bill is vetoed, Tarnas said he’d like to get HI-EMA to approach the broadcasters about the language and take a more constructive approach. He added: “We’re going to continue to push. There needs to be common ground.”

Big Island Now reached out to HI-EMA for comment and no one responded as of press time Friday night.

Colin Moore, associate professor in the school of communication and information at University of Hawai‘i, said he believes Green understands the importance of the First Amendment.

“In some ways, this is blown out of proportion a little bit,” Moore said. “I don’t think it’s an unreasonable position for him [Green] to take. He’s not saying he’s against any version it’s just this particular version is objectionable.”

Additionally, Moore said governors across the United States want to protect their emergency powers. They want to keep their options open. the governor would like a more narrowly tailored bill.

The professor added that any governor to invoke this power inappropriately would face political blowback.

“I don’t think it’s the sort of thing any governor would do except in the most extreme situations,” Moore said. “The way the bill exists now is too broad. There’s probably room for middle ground here.”

The examples of when Green would act on this emergency power are extreme.

“My guess is the one thing motivating this is social media and the internet, which is flooded with disinformation about something,” Moore said. “Governors are always looking at the worst-case scenario.”