The second approach, adopted by this court in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), is ultimately based on the United States Supreme Court's decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In Stanley, the Court held that the right to read or view pornographic material in the privacy of one's home is protected by the First Amendment.
We hold that Article 39, Revised Ordinances of Honolulu (ROH) ยงยง 41-39.1 through -39.12, and, more specifically, the provision therein requiring that the area of a booth designated for viewing pornographic videos purchased on the premises of a panoram business be visible from the booth's entryway, (1) does not violate the right to privacy under article I, section 6 of the Hawai'i Constitution, as applied in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), because a right to view adult material in an enclosed booth of a commercial establishment is not a necessary corollary to the established right to possess and view pornographic material in the home, and (2) does not infringe upon the right to free speech under article I, section 4 of the Hawai'i Constitution as applied in State v. Bloss, 64 Haw. 148, 637 P.2d 1117 (1981), inasmuch as (a) in seeking to curtail criminal activity associated with such booths, the ordinance is justified without reference to the protected material viewed within the booths and (b) by allowing panoram customers to continue to view the sexually explicit material in the booths as well as at home, the ordinance leaves open alternative channels of communication. See infra note 4.
The Court has in the past drawn legal boundaries around its decisions, despite the fact that arguably logic would "lead inexorably" beyond such strictures. Thus, in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), this court recognized that although the Court had held a state "would not be able to prohibit an individual from possessing and viewing . . . pornographic materials in the privacy of his or her own home[,]" id. at 489, 748 P.2d at 376 (citing Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), "[t]he . . . Court ha[d] effectively ruled that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others[,]" id. at 490, 748 P.2d at 376 (internal quotation marks and citation omitted), leading to the paradoxical conflict of a "citizenry['s] . . . right to read and possess material which it may not legally obtain[,]") id. at 491, 748 P.2d at 377. Hence, although the Court's language may seemingly point to broader application, that does not portend an extension of a given proposition especially when, as here, the Court expressly limits the scope of the liberty interest prot
The Court has in the past drawn legal boundaries around its decisions, despite the fact that arguably logic would "lead[ ] inexorably" beyond such strictures. Thus, inState v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), this court recognized that although the Court had held a state "would not be able to prohibit an individual from possessing and viewing . . . pornographic materials in the privacy of his or her own home[,]" id. at 489, 748 P.2d at 376 (citing Stanley v. Georgia, 394 U.S. 557 (1969), "[t]he . . . Court ha[d] effectively ruled that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others[,]"Kam, 69 Haw. at 490, 748 P.2d at 376 (internal quotation marks and citation omitted), leading to the paradoxical conflict of a "citizenry['s] . . . right to read and possess material which it may not legally obtain[,]" id. at 491, 748 P.2d at 377. Hence, although the Court's language may seemingly point to broader application, that does not portend an extension of a given proposition especially when, as here, the Court expressly limits the scope of the liberty interest protected.
ection 6. Of significant importance is the discussion in State v. Mallan, 86 Hawai'i 440, 950 P.2d 178 (1998), wherein this court was confronted with a similar issue as in this case โ namely, "whether the express right to privacy located in article I, section 6 of the Hawai'i Constitution encompasses a right to possess and use marijuana for recreational purposes" Id. at 441, 950 P.2d at 179 (emphasis added) (footnotes omitted). See, e.g., State v. Romano, 114 Hawai'i 1, 13-14, 155 P.3d 1102, 1114-15 (2007) (right to privacy does not extend to commercialized sexual activities); Janra Enters., Inc. v. City County of Honolulu, 107 Hawai'i 314, 322, 113 P.3d 190, 198 (2005) (viewing adult materials in an enclosed panoram booth on commercial premises not a protectable privacy interest); State v. Rothman, 70 Haw. 546. 556, 779 P.2d 1, 7-8 (1989) (without a warrant, governmental seizure of telephone numbers of outgoing and incoming calls on private telephone line violates right to privacy); State v. Kam, 69 Haw. 483, 493-94, 748 P.2d 372, 378-79 (1988) (right to privacy includes possession of pornographic materials in one's own home); State v. Mueller, 66 Haw. 616, 629-30, 671 P.2d 1351, 1360 (1983) (no protected right to sexual activities for hire within the home). In Mallan, the undisputed facts revealed that the defendant "was arrested in the parking lot of the Waikiki Shell after Honolulu police officers, attracted by the odor of burning marijuana, found a partially burnt marijuana cigarette in [the defendant's] automobile."
It has done both in UIPA, first by protecting from disclosure documents "which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy," HRS ยง 92F-13(1), and (pre-Act 47) by widening the scope of what constitutes "significant privacy interest" beyond what the constitution mandates, HRS ยง 92F-14(b)(4). SHOPO points to State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), as an example of this court "broadening [ ] the right of privacy protected by article I, section 6 [.]" Kam reversed the convictions of two booksellers who had been charged with "promoting pornography" because, "[s]ince a person has the right to view pornographic items at home, there necessarily follows a correlative right to purchase such materials for this personal use, or the underlying privacy right becomes meaningless." 69 Haw. at 495, 748 P.2d at 380.
Inhering in the clause is the premise that "[a] penal statute is vague if a person of ordinary intelligence cannot obtain an adequate description of the prohibited conduct or how to avoid committing illegal acts." State v. Kam, 69 Haw. 483, 487, 748 P.2d 372, 375 (1988). The contrary reading such as that proposed by the prosecution would render HRS ยง 707-702(1)(a) vague and ambiguous as to a pregnant woman.
State v. Arceo, 84 Hawai'i at 28, 928 P.2d at 870 (1996) (quoting State v. Wallace, 80 Hawai'i 382, 397 n. 14, 910 P.2d 695, 710 n. 14 (1996) (quoting State v. Hoey, 77 Hawai'i 17, 36, 881 P.2d 504, 523 (1994))). See State v. Kam, 69 Haw. 483, 491, 748 P.2d 372, 377 (1988) (Hawaii's constitution affords greater privacy rights than the federal right to privacy); State v. Rogan, 91 Hawai'i 405, 423, 984 P.2d 1231, 1249 (1999) (Hawaii's double jeopardy clause provides defendants broader protection than federal counterpart); State v. Lessary, 75 Haw. 446, 453, 865 P.2d 150, 154 (adopting the "same conduct" test and rejecting the federal standard based on the "same elements" test); State v. Santiago, 53 Haw. 254, 266, 492 P.2d 657, 664 (1971) (the protections enumerated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have an independent source in the Hawai'i Constitution's privilege against self-incrimination); State v. Hoey, 77 Hawai''i 17, 36, 881 P.2d 504, 523 (1994) (affording broader protection to suspects during custodial interrogation under Hawai'i Constitution than that recognized by Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)). We have also long recogniz
For example, this court has held that with regard to the right to privacy and first amendment rights, a person whose rights are not violated may raise them for others. State v. Kam, 69 Haw. 483, 488, 748 P.2d 372, 375 (1988) (holding that "sellers of pornographic items possess the standing to assert the privacy rights of those persons who wish to buy those items to read or view in the privacy of the home because buyers of pornography will usually never be subject to prosecution under the statute at issue); State v. Manzo, 58 Haw. 440, 445, 573 P.2d 945, 949 (1977) (explaining that overbreath doctrine as applied to the first amendment is an exception to "traditional rule that a person may not challenge a statute upon the ground that it might be applied unconstitutionally in circumstances other than those before the court"); see State v. Kaneakua, 61 Haw. 136, 597 P.2d 590 (1979) (clarifying that overbreath doctrine is inapplicable to cockfighting because no constitutional right is involved); see also State v. Bloss, 64 Haw. 148, 151 n. 6, 637 P.2d 1117, 1121 n. 6 (1982) (explaining that overbreath doctrine is exception to traditional standing rule because "courts recognized that the possible harm to societ
State v. Lee, 75 Haw. 80, 90-91, 856 P.2d 1246, 1253 (1993) (citations omitted) (internal quotation marks, ellipsis points, and brackets deleted).See also Biscoe v. Tanaka, 76 Haw. 380, 382, 878 P.2d 719, 721 (1994); Pray v. Judicial Selection Comm'n, 75 Haw. 333, 340, 861 P.2d 723, 727 (1993); Sifagaloa v. Board of Trustees of Employees' Retirement Sys., 74 Haw. 181, 191, 840 P.2d 367, 371 (1992); State v. Kam, 69 Haw. 483, 496, 748 P.2d 372, 380 (1988). "Such presumptive constitutionality does not apply for purposes of equal protection analysis in the case of statutes, which on their face classify on the basis of suspect categories such as race or sex.