Journalists and news media groups are speaking out against Gov. Josh Green’s apparent decision to preserve a Hawaii statute that grants his office the authority to shut down electronic communications during a state of emergency.
Last week, Green issued his intent to veto list, which included 17 bills passed earlier this year that he is considering to veto in part or in full. Among them is House Bill 2581, which makes one slight amendment to the governor’s emergency powers.
Current law allows the governor the authority to, during a state of emergency, suspend various services including water mains, gas mains, electricity — “and, to the extent permitted by or under federal law … electronic media transmission.”
HB 2581 would remove that last clause, and nothing else beyond minor grammatical changes. The preamble to the measure states that the current language is overly broad and could apply to social media, text messages, email and more, and could therefore represent a violation of the First Amendment.
But Green stated in his intent to veto list that the language should stand as is.
“We must still guard against acts of extreme violence or acts of terrorism which can use social media or other electronic media to communicate and activate crowds or destructive devices,” Green said in his intent-to-veto statement. “This power to suspend electronic media transmissions is subject to federal law and the governor and the mayors of every county in the state of Hawaii carefully weigh the power to suspend electronic media transmissions.”
Media organizations have contested Green’s statement, however. Chris Leonard, president of the Hawaii Association of Broadcasters, said the current law as it stands presents a threat to public safety.
“It makes sense to be able to cut electricity, because a downed power line with electricity running through it can kill someone,” said Leonard, who operates New West Broadcasting on the Big Island. “But having access to communications during an emergency can save people’s lives.”
Leonard said the origin of the law seems to stem from a 1951 law that allowed the governor to shut off radio transmission as a way to defend against air raids — presumably, he said, under the logic that attackers might be able to determine the location of targets by triangulating radio or TV signals.
“‘Electronic media transmission’ means something very different now than it did in 1951,” Leonard said, adding that the possibility of suspending transmissions in order to prevent a disaster — he gave the example of blocking a detonation signal to a dirty bomb — is both outlandish and also would be easily circumvented by a cheap walkie-talkie.
Nancy Cook Lauer, secretary for the Big Island Press Club and former West Hawaii Today reporter, said people often get critical information during an emergency from “electronic media” before government sources — although she added that the distinction between the two is blurry, because the media often partners with the government to disseminate that information as efficiently as possible.
“(Green) is looking at the spread of false rumors and misinformation,” Lauer said. “I think the government just hasn’t figured out how to vet media sources and is using a broad brush to paint them all.”
Beyond the impacts to public safety, Leonard said the statute seems to be in violation of federal law.
“It says ‘to the extent permitted by federal law,’ but federal law doesn’t grant that authority,” Leonard said. “That’s why there is no similar law in any of the other 49 states.”
Leonard also noted the Integrated Public Alert and Warning System Modernization Act of 2015 mandates that the U.S. president, federal agencies and other local governments can alert the civilian population about emergencies “under all conditions,” which the state law also seems to contradict.
This is all on top of the possible First Amendment violations. Leonard said cutting off electronic communications would appear to represent prior restraint — the censorship of potentially harmful free expression before the information is transmitted — which is unconstitutional.
While Green’s statement mentioned a previous bill during the 2023 session that “more properly balances the needs for communication balanced against the need for protection,” that measure, House Bill 522, was virtually identical to HB 2581.
“I’m not sure how much Green was involved in this bill,” Lauer said, explaining that the Hawaii Emergency Management Agency submitted comments regarding HB 2581 that compared it unfavorably to HB 522. “HIEMA sends these comments, but they don’t say what makes the last bill better.”
Meanwhile, HB 2851 passed unanimously through all its committees with no testimony in opposition.
Both the Hawaii Association of Broadcasters and Big Island Press Club have issued statements criticizing Green’s decision, with HAB calling it “government overreach” and the press club expressing “grave concerns.”
Lauer guessed that, should Green go through with the veto without the state Legislature overturning it, the law will likely be challenged in federal court.
Green has until July 10 to issue his final vetoes. Any bill he does not veto will become law by default on that date.
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.