Tuesday, November 6, 2018

U.S. Court of Appeals 9th Cir. Reviews King County Metro Ad Policy: Controversial Terrorism Ad Gets a Pass

In Am. Freedom Def. Initiative v. King County, 904 F.3d 1126, 1129 (9th Cir. 2018), the court reviews King County Metro's denial of a request to post a controversial ad on a King County Metro (hereinafter, "County" or "Metro") bus. 

The court followed past decisions holding that a transit advertising program is a nonpublic forum.  Consequently, the higher First Amendment freedom of expression standard of strict scrutiny does not apply; instead, Metro's policies must be reasonable and viewpoint neutral.  On its face, the court held that two of the three prohibited content policies by Metro were valid on its face.  However, Metro's prohibited category related to demeaning or disparaging content was invalid, and Metro's application of the harmful or disruptive content category was improper.

Ad denied by Metro is similar to this ad by U.S. State Department. Source: SeattlePI


A three-judge 9th Cir. panel reviewed an appeal from the U.S. Dist. Court for the Western District of Washington.

The panel affirmed in part and reversed in part.


Metro accepts ads for public display unless the ads contain certain categories of prohibited content, including false statements, disparaging material, and content that may disrupt the transit system.

Metro determined that Plaintiffs' ad concerning global terrorism contained all three types of prohibited content under Metro's policy: (1) False or Misleading, (2) Demeaning or Disparaging, and (3) Harmful or Disruptive to Transit System. Plaintiffs then submitted a revised, factually accurate ad, which the County rejected under the remaining two categories.

The falsity clause in Metro's transit advertising policy states that Metro will reject any ad that is:
False or Misleading. Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.
The panel concluded that "[t]he falsity standard meets constitutional scrutiny, both facially and as applied."

The disparagement clause in Metro's transit advertising policy states that Metro will reject any ad that is:
Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.
The panel concluded that the "disparagement standard discriminates, on its face, on the basis of viewpoint."

The disruption clause in Metro's transit advertising policy states that Metro will reject any ad that is:
Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.
The panel held that "the disruption clause, like the earlier one, survives facial scrutiny."


(1) Metro permissibly rejected the factually inaccurate ad because the First Amendment does not require Metro to display patently false content in a nonpublic forum.

(2) Metro's rejection of the revised ad does not withstand scrutiny. Applying Matal v. Tam, 137 S. Ct. 1744 (2017), Metro's disparagement standard discriminates, on its face, on the basis of viewpoint.

(3) The disruption standard is facially valid but, on this record, Metro unreasonably applied the standard to Plaintiffs' ad. The panel disagreed with Metro that "it is reasonably foreseeable that Plaintiffs' ad will harm the transit system," because the "ads may perpetuate harmful stereotypes and may upset riders which, in turn, may cause a decrease in ridership." The panel based its conclusion primarily on the fact that "Metro approved a very similar ad—the State Department's own 'Faces of Global Terrorism' ad—which actually ran for a period of nearly three weeks. . . , but Metro's transit system did not experience any harm, disruption, or interference."

Tuesday, November 28, 2017

Elusive Affordable Housing Policy

My current work at the Hawaii Community Development Authority has me thinking a lot about affordable housing.

Halekauwila Place, an affordable rental project in Kakaʻako.
Among other things, the development guidance policy for the Kakaʻako Community Development District requires, “integration both vertically and horizontally of residents of varying incomes, ages, and family groups; and an increased supply of housing for residents of low- or moderate-income may be required as a condition of redevelopment in residential use.”

While 34 percent of units built in Kakaʻako since 1987 were built as reserved, workforce, or low income housing, there is still great demand in all income categories.  This problem is not new in Hawaii, and various policies, programs, and initiatives have been proposed by the various counties and the state to address the issue.  However, the solution is elusive.

I recently came across two articles that give some insight into the challenge of creating effective affordable housing policies:

Cortright’s piece explores the rhetoric of the affordable housing debate.  The rhetoric has Balkanized stakeholders into unbending pluralities; however, there is little data to support any one side of the issue.  Bertolet’s piece is a creative illustration of the “more supply will solve the problem” philosophy, which challenges the “you can’t build your way out of the problem” philosophy.  Both lack solid data to support either conclusion, but both sound reasonable.   

Would a trusted, independent think-tank in Hawaii help?  It would collect, model, and interpret housing data; propose policies, tools, and programs; and get us closer to the objective we all can agree on: Housing choices for everyone in every income group.

Thursday, April 6, 2017

Climate Change Office on City's Budget Agenda

The City & County of Honolulu is considering the Mayor’s proposed budget.

The Mayor’s budget includes staff and funding for the Office of Climate Change, Sustainability, and Resiliency that was created by voters in the recent City Charter amendment process.  

The agenda for next Tuesday’s Special Budget Committee meeting has been posted.  Click on Bill 25 (agenda item #5) to view the budget request.  The agenda includes information on how to submit testimony.  I used the electronic option.  Here is what I sent:

Dear Chair Manahan and Committee Members:

Please support the budget request of the Mayor regarding the staffing and funding for the Office of Climate Change, Sustainability, and Resiliency.

As you know, the voters of Oahu overwhelmingly approved amending the City Charter to create the Office. Serving as the initial chair for the Charter Commission, one of the first substantive issues for consideration brought before the Commission was the impact of climate change on the people of Oahu.

Experts on the matter from the University of Hawaii showed how Hawaii will be uniquely impacted by climate change. The issue is not only sea-level rise, which is easy enough to observe for people who grew up in the islands, but also the following:

  • Recorded warming air temperature in Hawaii has quadrupled in the last 40 years,
  • Hawaii has seen an overall decline in rainfall in the last 30 years,
  • Sea surface temperatures have warmed, and
  • Global ocean acidity has increased by 30 percent.

These local impacts are stressing the ability of our environment to protect us from storm events, to feed us, and to keep us healthy. It is killing our reefs and eroding our beaches, which support our number one economic engine, tourism. The future is bleak, unless we take actions to understand the threat, address our weaknesses and strengths, and begin to strategically invest in making our communities resilient in a post-climate change future.

The issue of climate change is multidimensional, and will require a coordinated effort across agencies, programs, and branches of government. The Office of Climate Change, Sustainability, and Resiliency is intended to serve that purpose and should be given the resources it needs to accomplish this important task. If done right, the work of the Office will undoubtedly benefit current and future generations.

Thank you for your consideration and your difficult task of preparing our City’s budget.

Jesse K. Souki

Sunday, September 11, 2016

Hawaii Appeals Court Sets Boundary on the Applicability of State EIS Law

The trend in Hawaii's appellate courts has been to expand the scope and applicability of Hawaii's environmental laws.  The courts have rarely deferred to agency expertise and discretion.

In Umberger v. Department of Land and Natural Resources ("DLNR"), the Hawaii Intermediate Court of Appeals defined the outer-limits of Hawaii's environmental impact statement law, commonly referred to as the Hawaii Environmental Policy Act ("HEPA").

Yellow Tangs, A Commonly Harvested Aquarium Fish
The case involved aquarium fish permits that allow permittees to collect fish for aquarium purposes from Hawaii's waters.  The Court defined the question before it as follows:
[W]hether a particular Hawaii statute, HEPA, is intended to apply so that each applicant for an aquarium fish permit must, at a minimum, prepare an EA [environmental assessment]—as well as engage in the related process of consultation, information gathering, and public review and comment—and DLNR must, with each application, undertake a HEPA review prior to issuing an aquarium fish permit.
The Court disagreed, and held as follows:
We conclude that to interpret "program or project" so sweepingly as to require individual aquarium fish permit applicants to undertake the EA process is not a "rational, sensible and practicable interpretation" of HEPA and would create an unreasonable, impractical, and absurd result. Accordingly, we hold that aquarium collection under an aquarium fish permit issued by DLNR pursuant to HRS § 188-31 is not an "applicant action" under HEPA.
Citations omitted.

Although not essential to its decision, the Court provided a rare statement of agency deference when it stated that, "There is no question that the DLNR shares Appellants' concerns about the health of Hawaii's reefs and its marine inhabitants and seeks to appropriately manage and administer the aquatic life and aquatic resources of the State in accordance with all applicable laws."  The U.S. Supreme Court recognized that judicial deference to agency expertise is one of the most important principals in administrative law, due in part to an agency's intense familiarity with the history and purposes of the legislation at issue and their practical knowledge of what will best effectuate those purposes.

Read the entire opinion at https://scholar.google.com/scholar_case?case=9667698222799409226.

Thursday, June 30, 2016

Happy 60th Birthday to the U.S. Interstate Highway System

It’s an auspicious day: The U.S. Interstate Highway System turns 60 years old today. 

As we reflect on the importance of President Eisenhower’s monumental public works program, it is apropos to consider why we are building a monumental transportation project for Hawaii, rail.

Here is a link to a report, “The Interstate Highway System turns 60: Challenges to Its Ability to Continue to Save Lives, Time and Money,” prepared by TRIP, a national transportation research group, http://www.tripnet.org/docs/Interstate_Highway_System_TRIP_Report_June_2016.pdf.  It’s a survey of the opportunities and challenges of the interstate system, and Hawaii ranks high on the challenges side of the balance sheet:
Source: http://www.fhwa.dot.gov/interstate/finalmap.cfm
  • Hawaii is among the top states with the greatest share of their urban Interstate highways considered congested.
  • Hawaii is among the top ten states with the busiest urban Interstates.
  • Hawaii is number 1 among states with the greatest share of their Interstate highways with pavements in poor or mediocre condition.
  • Hawaii is among the top ten states with greatest share of urban interstates that experience congestion during peak hours.
  • Hawaii is among the top ten states with greatest daily travel per-lane-mile on urban interstates.

For the family sitting in traffic for hours every day commuting to work and school, these facts are meaningless.  All they know is that a significant portion for their lives are lost sitting in a car.

The final EIS prepared for the Honolulu rail transit project--its purpose, need, and goals--help to address all of these issues.  And, when you consider how rail will reshape development patterns by bringing far flung, sprawled communities within walking distance to work, school, home, and recreation through a mix of reliable, safe, and efficient transportation options, well, what else is there to say?  

The path to great things is always paved with obstacles, but isn’t that true of anything worth doing?  We need to stay the course.

Monday, June 27, 2016

To Build or Not to Build: Honolulu Rail Redux

Once again, we are confronted with the question of whether to fully fund Oahu’s rail project.  I can't help but draw comparisons with recent world events, like Brexit.

Whether one agrees with the outcome of the UK vote to leave the European Union (52% to 48%), a lesson can be learned about making decisions based on passions and populism.  Many UK voters are only now considering the gravity of their vote.  Some are even asking their government for a “do over,” because their vote was a “protest vote.”  They didn’t mean it.

We aren't holding a referendum on rail, but the "in or out" question is just the same.  Should we fully fund the Oahu’s rail project, from start to finish, all 20-miles, 21-stations (and at some point in the near future, extensions to UH Manoa, West Kapolei, and Waikiki)?  This sounds like a simple question; however, like the question before UK voters, it's far more complicated.  When considering the ultimate question on rail, one should consider the purpose of the project, why Oahu needs it, and whether it will resolve the issue Oahu is trying to address in the least impactful way.

The construction and completion of Honolulu’s rail system as planned will have far reaching economic, social, and environmental impacts and benefits.  The overarching purpose of the project is to provide high-capacity rapid transit in the highly congested east-west transportation corridor between Kapolei and UH Mānoa.  The project is needed to improve mobility for travelers who face increasingly severe traffic congestion, improve transportation system reliability, provide accessibility to new development in support of adopted City land use plans, and improve transportation equity.

Rail will serve nearly 70 percent of Oahu's population and more than 80 percent of working taxpayers.  With the opportunity to create new communities and rejuvenate existing communities along the alignment, comes endless possibilities to ensure that housing options go vertical and not sprawl out horizontally, preserve the Island’s limited space, implement walkable communities, and reduce the cost of transportation for Hawaii’s families.  These are the kinds of communities that surveys show both millennials and our aging population want to live in, work in, and retire in.

Project ridership in 2030 is expected to be about 119,600 weekday passenger trips.  Rail will eliminate an estimated 40,000 car trips from our congested streets and highways.  Each four-car train can carry more than 800 passengers, the equivalent of more than ten buses.  Because it operates on its own elevated fixed rail, it will take just 12 minutes to get from the airport to the downtown station.

Is the fixed, elevated guideway and technology the best option?  The debate continues.  All we can do in a civilized democracy is establish a good process.  The rail decision process began before 2005 and included elected officials, experts, and the public.  Many options were considered and the majority ruled.  Subsequent judicial challenges of the environmental review process resulted in an outcome that ensured the avoidance, minimization, or mitigation of significant environmental impacts.

After more than a decade of planning, debate, technical reports, litigation, false starts, and finally construction, we find ourselves with a set of trains, several miles of guideway, and a nearly complete operations center.  Is it time to stop or only build a part of the project?  I hope not.  Honolulu's rail project is the democratically arrived at best option to address our quality of life.

As we consider what we do next, all factors must be taken into consideration.  As we learned from our friends in the UK, there are no do overs.