HA.,HA., Thump: Hawaii Sued by the Babylon Bee and Other Groups Over Speech Crimes

We have previously discussed laws that seek to criminalize “materially deceptive” political content worldwide, including memes and parodies. A civil law was blocked in California, where satirists and comedians opposed a Democratic law barring parodies and other expressions considered misleading. Now, legislators in Hawaii are trying again with a new law (S 2687) that criminalizes “recklessly” distributing “materially deceptive media.” It is clearly unconstitutional and is only the latest such effort to chip away at free speech protections in the United States.

Gov. Josh Green (who is up for re-election) signed S2687 into law in July 2024. It prohibits the distribution of “materially deceptive media” that portrays politicians in a way that risks harming “the reputation or electoral prospects of a candidate.”

It also forces distributors of satirical content to post large disclaimers on the satirical nature of the content, which the litigants argue negates the satirical intent.

Violators face jail time, large fines, and lawsuits.

S2687 makes a first-time violation “a petty misdemeanor.” Haw. Rev. Stat. § 11-303(d). Conviction for a petty misdemeanor can result in a sentence of up to 30 days in prison and a fine of up to $1,000. Haw Rev. Stat. §§ 701- 107(4), 706-640(1)(e).

A second violation “within five years of a previous conviction for” S2687 is “a misdemeanor.” Haw. Rev. Stat. § 11-303(e). Conviction for a misdemeanor can carry a sentence of imprisonment of up to one year and a fine of up to $2,000. Haw Rev. Stat. §§ 701-107(3), 706-640(1)(d).

Violating S2687 “with the intent to cause violence or bodily harm” is “a class C felony.” Haw. Rev. Stat. § 11-303(f). Conviction for a class C felony can carry a sentence of imprisonment of up to five years and a fine of up to $10,000. Haw Rev. Stat. §§ 706-660(1)(b), 706-640(1)(c).

The law is enforceable for nine months before every election, with exemptions for “disclaimers, broadcasters, and interactive computer services.”

The Bablyon Bee and a Christian satire website are among the challengers to the law. Alliance Defending Freedom is representing the litigants.

Astonishingly, only one legislator voted against the law in Hawaii despite opposition from the Hawaii Office of the Public Defender and Hollywood’s chief lobbying group. It is a chilling measure of the decline of free speech values, particularly in the Democratic Party.

Once again the American left is taking the lead from Europe in such laws. Countries like Germany have prosecuted those who parody politicians.

Leading Hawaii Democrats have been lampooned in satire on sites like Bablyon Bee and those postings would now be treated as criminal matters. That includes Babylon Bee running such items as Senator Hirono Demands ACB Be Weighed Against A Duck To See If She Is A Witch, Babylon Bee (Oct. 14, 2020).