One World One Family Now v. City & County of Honolulu

An ordinance prohibits the sale of merchandise on city streets. We must determine whether it may be constitutionally applied to bar non-profit organizations from selling message-bearing T-shirts.

I

Plaintiffs One World One Family Now and Bhaktivedanta Mission are non-profit corporations operating in Hawaii. Both organizations sell T-shirts imprinted with various philosophical and inspirational messages, such as “Protect and Preserve the Truth, the Beauty & Harmony of our Native Cultures,” Ex. 3, “TAKE IT EASY MEDITATE HANG LOOSE HAWAII,” Ex. 4, and “WAIKIKI HAWAII HARINAM,” Ex. 6. 1 Many of the T-shirts feature colorful depictions of Hawaii’s scenic natural beauty, not unlike shirts sold in retail stores catering to tourists. Plaintiffs believe that selling T-shirts is a particularly effective way to communicate because those who buy and wear the T-shirts help spread the message.

Aiming for a wide audience, plaintiffs, along with a number of commercial T-shirt vendors, set up several display tables on the sidewalks of Kalakaua Avenue, one of the busiest commercial streets in Waikiki. 2 The City and County of Honolulu soon began to hear from visitors and local residents…

dissenting:

Because I believe the First Amendment protects the right to speak freely in a public *1020 forum, I dissent. Two aspects of the majority opinion are troublesome. First, the majority opinion diminishes the free speech right at stake here by narrowing the scope of our decision in Gaudiya Vaishnava Society v. City of San Francisco, 952 F.2d 1059 (9th Cir.1990), cert. denied, 504 U.S. 914 , 112 S.Ct. 1951 , 118 L.Ed.2d 555 (1992). Second, the majority’s time, place, and manner analysis rubber-stamps Honolulu’s ordinance restricting speech even though (a) the ordinance is not narrowly tailored to achieve Honolulu’s civic goals, and (b) no equally effective alternative forum for the restricted speech exists. I address each concern in turn.

I

The majority recognizes that the plaintiffs’ T-shirt sales fall within the protective ambit of the First Amendment. Nevertheless, the majority’s analysis gives short shrift to our important discussion in Gaudiya concerning the substance of the right to speak in a public forum, which includes the right to sell message-bearing T-shirts.

In Gaudiya, we held that merchandise with messages affixed to the product, “when sold in conjunction…