James O’Keefe Sues Hawaii for Ban on Public Photography in Lahaina

The ban, imposed under the governor’s emergency declaration powers, can lead to fines and prison terms for violation.

James O'Keefe, the founder of Project Veritas, is seen in Washington, on Oct. 12, 2019. Samira Bouaou/The Epoch Times

The O’Keefe Media Group filed a lawsuit against Hawaii’s Democrat Governor Josh Green and the County of Maui for prohibiting taking pictures on public land.

The lawsuit, filed at the U.S. District Court for the District of Hawaii on Sept. 14, accuses Governor Green of violating the free speech and free press rights of the plaintiffs. The case stems from an incident which took place around Sept. 1 when journalist James O'Keefe and a second individual, identified as John Doe in the lawsuit, took photographs along the bypass between Kihei and Lahaina in Maui. “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.”

MCSD officials informed John Doe that the criminal charges against him do not stem from any law but from “Emergency Proclamations” made by the governor as a result of Maui wildfires. These proclamations made John Doe’s “constitutionally protected First Amendment activity a crime,” the lawsuit states.

Around Sept. 12, the O’Keefe Media Group asked Maui County officials whether it still had the right to report on matters of public concern.

“In response, MCSD advised that the ‘Emergency Proclamations’ issued by Governor Green made it a crime to take photographs, even though such activity, as MCSD conceded, falls squarely within the rights afforded by the First Amendment to the U.S. Constitution.”

When asked which law gives the governor the authority to criminalize action coming under the First Amendment, MCSD officials cited HRS Section 127A-29(a).

The section relates to “emergency period infractions.” It states that any individual who violates any rule of the governor or mayor imposed during an emergency period may be deemed to have committed a crime.

If such rules do not state and designate the offense and penalty, individuals found to violate the regulations can be charged a fine of up to $2,000 and imprisoned for up to a year.

The lawsuit points out that “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.”

And even if HRS Section 127A-29(a) somehow gives the governor the authority to unilaterally promulgate his own rules, he is obliged to do so within the limits prescribed by the Due Process Clause of the Fourteenth Amendment, the lawsuit said.

A missing person flyer for Joseph "Lomsey" Lara is posted on the door of a business in a shopping mall in Lahaina, Hawaii, on Aug. 21, 2023. Jae C. Hong/AP Photo

The Due Process Clause makes it clear that “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.”

The lawsuit also charged HRS Section 127A-29(a) of violating the “vagueness doctrine of the Fourteenth Amendment.”

“The statute with which John Doe was charged fails to state explicitly and in definite terms what conduct is punishable,” it pointed out.

“John Doe is entitled to have fair notice of what conduct is punishable and what conduct is not punishable. It is not subject to reasonable dispute that HRS § 127-A29(a) unequivocally fails to provide John Doe of fair notice.”

Free Speech Curb, Government Overreach

In a Sept. 15 post on X, Mr. O’Keefe posted a video showing the warning that he received from Maui police officials against taking pictures as well as other events related to the incident.

In the video, the Hawaii Deputy Sheriff can be seen justifying the ban on taking pictures, citing safety reasons. “It’s not like they’re trying to hide anything, but it’s actually an emergency thing down here,” he said.

Search and recovery team members check charred buildings and cars in the aftermath of the Maui wildfires in Lahaina, Hawaii, on Aug. 18, 2023. Yuki Iwamura/AFP via Getty Images

Mr. O’Keefe then talked to a Hawaii Army National Guardsman and asked him about the rule prohibiting taking pictures. The guard dismissed the validity of the rule.

“Anybody can take pictures. No one can stop you from taking pictures,” the guard said. When asked about an officer threatening to arrest if found taking pictures, the guard replied—“Yeah, he’s kind of pushing and puffing the chest.”

Another guardsman also confirmed to Mr. O’Keefe that he was free to take pictures. About the officer’s arrest threat, the guardsman said that “they’re probably just being [expletive].” This guard is a police officer from Honolulu.

The lawsuit has been filed by attorney Mike Yoder. “If we don’t have the freedom of the press, we don’t have the freedom of speech, and people are kept in the dark as to what the government’s doing and what is going on, then there’s no way to ever have a people-led or people-controlled society,” he said.

Nonprofit group “People Helping People” has highlighted the issue of Governor Green’s “unchecked power” under the emergency declaration and has set up a legal fund to protect Maui residents from government overreach.

HRS Section 127A-13 provides several powers to the governor during an emergency, including quarantining or segregating people believed to be infected by a disease deemed to be a public danger, suspending any law that impedes emergency functions, suspending electronic media transmission, and adjusting voting hours.

The wildfires in Maui resulted in 115 confirmed fatalities. It had burned through thousands of acres of land and destroyed numerous buildings. Officials are currently identifying the first zones in the County of Maui where residents will be allowed reentry once hazardous materials are cleaned up.