In hidden camera footage taken during the investigation, law enforcement officers in the devastated area told OMG journalists that due to the governor’s emergency order in response to the fires, they were prohibited from taking pictures or video on public land and even threatened founder James O’Keefe with arrest if he refused to cease recording.
O’Keefe said in the video that he was filing the lawsuit in order to “…invalidate the criminalization of protected First Amendment activity and to also strip Maui County of any ability to criminally charge anyone who exercises their First Amendment rights.”
The suit, which was filed in the US District Court of Hawaii is seeking to prohibit the governor from “…unilaterally criminalizing the fundamental rights of free speech and a free press to which Plaintiffs are guaranteed under both, the United States and Hawaii Constitutions.”
During the trip to Lahaina on Sept 1, 2023, the other plaintiff, identified as John Doe, “…took photographs as he reported while walking along the Bypass between Kihei and Lahaina. Despite John Doe’s well-established First Amendment right to report on matters of public concern, Maui County, by and through its Sheriff’s Department (“MCSD”), criminally charged John Doe for his journalism.”
According to the suit, “MCSD officials informed John Doe that it was not a law, but rather, the 'Emergency Proclamations' Governor Green had issued regarding the Maui wildfires that made his engagement in constitutionally protected First Amendment activity a crime.”
“Upon learning that Governor Green had circumvented the Hawaiian legislature and unilaterally criminalized the constitutional right to a free press, Plaintiff O’Keefe Media Group (“OMG”) sought out to obtain clarification on this blatant affront to the rights of John Doe and all Hawaiians who desperately seek answers to the ever-increasing number of questions they have concerning the handling of the response efforts to the fires and their future lives on the island.”
MCSD officials cited HRS § 127A-29(a), Emergency period infractions, violations, petty misdemeanors, and misdemeanors as what the plaintiffs had violated. The order states, “Any person violating any rule of the governor . . . prescribed and adopted pursuant to this chapter and having the force and effect of law shall, if it shall be so stated and designated in the rule, be guilty of a violation, petty misdemeanor, or misdemeanor. The governor or mayor may state and designate the penalty applicable to the offense; provided that if a penalty is not stated and designated, the person shall be sentenced in accordance with chapter 706. If the offense and penalty are not stated and designated in the rule, the person shall be guilty of a misdemeanor and upon conviction, the person shall be fined no more than $2,000, imprisoned no more than one year, or both. Id. (emphasis added). But Governor Green does not have the authority to promulgate his own rules, and even if he did, any rule he issues must not run afoul of the rights guaranteed under the United States Constitution pursuant to the Supremacy Clause and the preemption doctrine.”
The suit alleges that the actions taken by law enforcement as a result of the governor’s order violates the Due Process Clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In OMG’s latest undercover expose, even members of the Hawaii National Guard are on video criticizing Green’s actions.
According to the suit, there is a “…conflict that exists between the State of Hawaii’s criminalization of First Amendment activity and the First Amendment to the U.S. Constitution” and asks for injunctive relief.
OMG said “This isn’t merely about the freedom to take photos; it’s about the freedom of the press and the right to hold our leaders accountable.”
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