Kaahumanu v. State of Hawaii

Where a permit to conduct commercial activities on a public forum imposes a condition allowing an official to revoke the permit at his or her sole discretion, such a condition violates the First Amendment because no adequate standards exist to guide the official’s decision and to render that decision subject to judicial review.

Laki Kaahumanu and Maui Wedding and Event Professionals, an association that provides commercial services for weddings, alleged that the permit requirements for “commercial weddings” on public beaches, as required by the State of Hawai’i Department of Land and Natural Resources (“DLNR”), unduly burden their right to organize weddings on unencumbered public beaches. The DLNR requires permits for all commercial activities on unencumbered public beaches. The terms and conditions for a permit allow for a reserved “right of entry area,” and require an applicant to obtain comprehensive insurance and indemnify and hold harmless the DLNR. The permit also limits the type of accessories permitted on the beach, and allows the DLNR Chairperson to revoke the permit at his or her sole discretion. The district court granted summary judgment for the DLNR, holding that unencumbered beaches are not traditional public fora, and that even if they are, the regulations and guidelines for permitting are reasonable. The Ninth Circuit assumed without deciding that the unencumbered state beaches are traditional public fora, and that the permitting requirements are narrowly tailored to serve a significant government interest. However, the Court determined that the ability of an official to revoke a permit at anytime for any reason is inconsistent with the First Amendment, because no adequate standards exist to guide the official’s decision and to render that decision subject to judicial review. Thus, the Court held that the requirement to obtain a permit, the limitation on accessories, the insurance requirement, and the indemnification clause satisfy the traditional public forum standard. However, the condition allowing the DLNR to revoke the permit at the sole discretion of a DLNR official violates the First Amendment. AFFIRMED in part, REVERSED in part, and REMANDED.