Agenda - Planning Commission - 10/04/2012

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July 25, 2012 Volume 6 1 issue 14 Zoning Bulletin state beaches did not violate the First Amendment. The court also found that the accessories limitations and the insurance and indemnity requirements did not violate the First Amendment. The court did, however, conclude that unbridled discretion reserved to DLNR to revoke permits or add to permits' terms and conditions violated the First Amendment. In so concluding, the court first held that wedding ceremonies are protected expression under the First Amendment. The court said this was because the First Amendment protects more than political speech and more than just the spoken and written word; it also protects expressive conduct so long as that conduct "convey[s] a particularized message" and is likely to be understood in the surrounding circumstances. The court found wedding ceremonies were protected expressive conduct in that they conveyed "important messages about the couple, their beliefs, and their relationship to each other and to their community." Next, the court explained that the level of its scrutiny regarding the constitutionality of DNLR's commercial wedding permit requirements depended on the nature of the public forum at issue. The Wedding Planners contended that the unencumbered state beaches were traditional public forums —subjecting them to the most exacting test for restrictions on forum, Under that test, the government can exclude a speaker "only when the exclu- sion is necessary to serve a compelling state interest and the exclusion is nar- rowly drawn to achieve that interest." DLNR, on the other hand, contended that the beaches were "nonpublic forums" —requiring the least exacting test and that regulations simply be reasonable and viewpoint neutral. The court said that it "need not decide the precise nature of the form." For the regulations it upheld, it assumed without deciding that unencumbered state beaches in Hawai'i were a traditional public forum. For the regulations that it concluded were invalid, the court assumed without deciding that the unencum- bered state beaches in Hawai'i were nonpublic forums. The court explained that restrictions on speech in a traditional public forum are reasonable, and thus permissible, provided that they: (1) serve a significant governmental interest; (2) are narrowly tailored to serve that significant governmental interest; (3) are content neutral (i.e., justified without reference to the content of the regulated speech); and (4) leave open ample alternative channels for communication of the information. Here, the court found that DLNR's regulations requiring a permit to hold commercial weddings on Hawai'i public beaches did not violate First Amend- ment free speech because they: (1) served a significant governmental interest in minimizing conflicting uses of limited beach area and conserving the phys- ical resource of the beaches; (2) were narrowly tailored given that the applica- tion process was not burdensome, and there was no evidence that any applica- tion had ever been denied; (3) were content -neutral, requiring a permit for any kind of commercial activity; and (4) left open ample alternate opportunities for public beach weddings, including county beaches or private property. The court also found DLNR's regulations limiting accessories that may be used in commercial weddings on Hawai'i public beaches did not violate the First Amendment free speech as applied because it found such accessory limitations: (1) served a significant governmental interest in not allowing such 4 © 2012 Thomson Reuters