Summary
Hawaii House Bill 548 would impose civil liability on any author or publisher of any visitor guide or website that “invites, attracts or encourages” a person to illegally trespass if a person does so in reliance on the guide and suffers an injury or dies.
“Visitor guide publication” is defined as any book, magazine, pamphlet, mailer, handout or advertisement that provides information about a visitor destination, geographic destination or natural attraction on privately owned land in Hawaii. “Visitor guide website” is defined as any website, blog, Twitter account, forum or other wireless communication that provides information about a visitor destination, geographic destination or natural attraction on privately owned land in Hawaii.
The bill was amended in the House Committee on Tourism to impose civil liability on any author or publisher of any visitor guide or website that “knowingly or negligently encourages or invites” a person to “enter, cross or remain on privately owned land from which the public is excluded” and the person suffers an injury or dies as a result of entering, crossing or remaining on the property. The publisher or author must also indemnify the property owner or occupier for any civil liability as a result of an injury or death to the trespasser.
The bill was amended in the House Committee on Water, Land and Ocean Resources so that it would apply to trespassing on both “privately or publicly owned land from which the public is excluded.”
The bill was amended in the House Committee on Judiciary to require a writer and publisher of such a guide, book or website to “warn the public of dangerous conditions typical of the area if the conditions pose a risk of serious injury or death.”
The bill was amended in the Senate Committee on Tourism to remove the third-party liability provision. The bill would instead create a task force to “identify problem area on the various islands related to trespass over privately held or public lands as the result of information published on visitor guide website and in visitor guide publications.”
It is companion to S.B. 1207.
Status
The bill was carried over to the 2012 session. There was no action taken on the bill in 2012. The bill is dead.
Analysis
Travel guides are fully protected by the First Amendment. Speech is protected unless the Supreme Court tells us otherwise. This bill singles out a certain type of fully protected speech for regulation, and such content-based regulation of speech is presumptively invalid.
Any constitutional infirmities of H.B. 548 are not cured by the fact that the legislation would create a private civil tort action, rather than imposing a direct government sanction on the speaker. It is well established that the First Amendment does not allow application of state tort law in a way that violates free speech.
Civil liability creates a substantial chilling effect on producers and distributors of such material. The prospect of being responsible for the behavior of each viewer, reader or listener is likely to frighten producers and distributors to the point where it will severely chill the dissemination of constitutionally protected works. Due to this potential chilling effect, courts have repeatedly held that absent actual incitement to imminent lawless action, those who produce or sell First Amendment-protected material may not be subjected to financial liability for unlawful or violent acts of third parties, even if they were influenced by specific media. In third-party liabilities cases where the perpetrator or victim had copied what he or she read or saw, courts have barred or thrown out suits seeking civil damages.
Writers and publishers do not have a duty of care to readers and the state cannot impose such an obligation. Guide books are protected by the First Amendment, and the state cannot tell an author how to describe an attraction or activity or risk financial punishment. Courts have declined to impose liability on publishers even where a reader has relied on the content of a book that turned out to be incorrect.
Imposing liability is questionable policy for three reasons: first, it makes innocent third parties responsible for the acts of those who trespass; second, it diminishes the responsibility of the trespasser, since he or she can claim that something he saw or heard “made me do it;” and, it absolves property owners for injury or death of the trespasser, even if the property owner is at fault.
History
- On January 24, 2011, the bill was introduced [5] and referred to the House Committees on Tourism; on Water, Land and Ocean Resources; and on Judiciary.
- The House Committee on Tourism held a hearing on the bill on January 31, 2011. The committee recommended the bill be deferred.
- On February 7, 2011, Media Coalition submitted a memo to the House Committee on Tourism [4]. The memo explained the constitutional issues with the bill.
- The bill was amended in the House Committee on Tourism [6]. As amended, the bill would impose civil liability on publishers and authors if the guide or website “knowingly or negligently encourages or invites” a person to “enter, cross or remain on privately owned land.” The committee recommended the bill be passed as amended.
- On February 13, 2011, Media Coalition submitted a memo to the House Committee on Water, Land and Ocean Resources [3], ahead of a scheduled hearing on the bill on February 14, 2011.
- The bill was amended in the House Committee on Water, Land and Ocean Resources [7]. The amendment broadened the scope of the bill to apply to both “privately or publicly owned land from which the public is excluded.” The committee recommended the bill be passed as amended.
- On February 28, 2011, Media Coalition submitted a memo to the House Committee on Judiciary [2], ahead of a scheduled hearing on the bill on March 1, 2011.
- The bill was amended in the House Committee on Judiciary [8]. The amendment would require websites and guides to “warn the public of dangerous conditions typical of the area if the conditions pose a risk of serious injury or death.” The committee recommended the bill be passed as amended.
- On March 8, 2011, Media Coalition submitted a memo to all the members of the House [1], reiterating the constitutional concerns with the bill.
- The House passed the bill and sent it to the Senate for consideration. The bill was referred to the Senate Committees on Tourism and on Judiciary and Labor.
- The Senate Committee on Tourism held a hearing on the bill on March 22, 2011. The bill was amended in committee [9]. The amendment removed the third-party liability provision. The bill would instead create a task force to identify “problem areas” related to trespass as a result of information in visitor guides. The committee recommended the bill be passed as amended.
- The bill was referred to the Senate Committee on Judiciary and Labor.
- The legislature adjourned its 2011 session. The bill was carried over to the 2012 session.
- There was no action taken on the bill during the 2012 session. The bill is dead.