Hawaii Legislature Invents New ‘Duty’ For Publishers
Editor’s note: Warning. Some satire ahead.
Note to the Hawaii Legislature: We have a concept in America called a free press.
You might have heard of it.
As much as in your wisdom you might like to tell publishers what to do, that’s not the way things work in the United States.
You wouldn’t know that from . The bill, which has already cleared the Hawaii House and is scheduled for a Senate Tourism Committee hearing Tuesday, proclaims that publishers “shall have a duty to warn” the public of dangerous conditions. Even if they do their duty, though, they’ll still have to indemnify landowners and the state in case of lawsuits resulting from injury or death.
Why not go one step further? I think the government should just take over all tourism publishing itself. That way it could do its duty and make sure the public got the appropriate information — and only the appropriate information. If we know one thing, after all, it’s that government knows best.
OK. Seriously, there clearly is a problem in Hawaii with tourists going dangerous places where they shouldn’t be and getting hurt, even dying. It’s positive, and even admirable, that there are people who want to prevent unnecessary suffering.
And it’s understandable that there’s frustration over some tour book publishers and authors who seem to be ignoring the problem and even encouraging people to go onto private property to see spectacular, but dangerous, sites.
But there are ways to solve that problem that don’t rip up the very laws that form the basis of our society.
It’s in places like Cuba and Venezuela where publishers are told they have “a duty” to report in a certain way. Not in America.
A “duty” to report is an over-the-top concept to begin with. Adding in the idea that private publishers would have to indemnify private landowners and the government in cases of lawsuits, makes HB 548 even weirder. The sponsors might want to look up a few court cases1 in our federal circuit before they waste their time.
What is truly disappointing about HB 548, though, is that it seemed like a different version of the bill in the Senate, , had struck a reasonable, Hawaii compromise2. It just called for the creation of a task force involving all the parties who should have been talking with each other about the problem but weren’t.
That task force would have seen publishers sit down with private landowners and tourism officials, among others, “to identify problem areas.” The group would have had a much wider scope and would have looked for ways to reduce the “incidence of trespass.”
That bill never made it out of the Senate. The House bill on the topic now being considered by the Senate calls for a task force that excludes the publishers who are perceived to be the problem. And its sole role would be to “identify and assess lands in all counties, featured currently or in the past in visitor-guide publications or websites, on which exist dangerous conditions posing a risk of serious injury or death.”
How could that be enough?
The Senate should go back to the language of SB 1207 and remove the assault on the First Amendment from HB 548.
Or, maybe it should go all the way and ban all tourism publishing that doesn’t come from the government.
Seriously.
To read other articles on this topic:
1: In a 1991 case where the plaintiff sued a publisher after falling ill from eating mushrooms, a court ruled that publishers “have no duty to investigate the accuracy of the contents of the books it publishes.” “The court concluded that such a duty could not be created because ‘the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs.’ It said, a publisher’s “right to publish free of fear of liability is guaranteed by the First Amendment . . . and the overriding societal interest in the untrammeled dissemination of knowledge.” ↩
2: called for a much more inclusive task force. Here’s what it said:
There is established a task force, to be attached to the department of business, economic development, and tourism for administrative purposes, to identify problem areas on the various islands related to trespass over privately held or public lands as the result of information published on visitor guide websites and in visitor guide publications.
(b) The task force members shall be appointed by the president of the senate and the speaker of the house of representatives and shall include representatives from the:
(1) Hawaii tourism authority;
(2) Department of the attorney general;
(3) Department of agriculture;
(4) Department of land and natural resources;
(5) Senate;
(6) House of representatives;
(7) County police or fire departments with responsibilities for rescues and public safety;
(8) County visitor bureaus;
(9) Hawaii Farm Bureau Federation or county farm bureaus;
(10) Hawaii Cattlemen’s Association;
(11) Private landowners;
(12) Visitor guide websites and visitor guide publications; and
(13) Hawaii publishing industry.
(c) The task force shall meet in large and small groups, as appropriate, to develop findings and recommendations to reduce the incidence of trespass over privately held or public lands to access remote or scenic destinations as the result of information published on visitor guide websites and in visitor guide publications.
