Bill Aila, newly appointed as director of the Department of Land and Natural Resources, appears to have tripped up in one of his first official acts by far exceeding his authority in trying to limit news reporting.
In a March 17, 2011 letter addressed to “all news agencies,” Aila threatened news media with fines up to $10,000 per violation for publishing, without prior state approval, any photographs showing human remains believed to be Native Hawaiian and more than 50 years old.
A video clip from Hawaii News Now displayed along with the Star-Advertiser story online is now “unavailable,” and it no longer appears on the Hawaii News Now web site.
In the future, we request that all news agencies show due respect for the dead and refrain from photographing human remains.
According to the letter, “state law strictly prohibits photographing any human remains over 50 years old” without express approvals from the state.
It would certainly seem that there are First Amendment issues involved in attempting to apply the department’s rules to the news media in this manner.
Did someone say “prior restraint”?
But first there’s an unwritten rule I always refer to when confronted with this kind of blanket assertion: “May I see a copy of that policy, please?”
It’s amazing how often the supposed authority can’t be found or is simply being exceeded. In this case, Aila’s letter fails to identify any specific statutory authority beyond his general reference to “state law.”
His only legal citation is to the authority to levy finds, found somewhere in HAR 13-300, and to the confidentiality requirements found in HAR 13-300-31.
So I went to look for the administrative rules Aila’s letter cites, Section HAR 13-300, and the specific rule 13-300-31.
Turns out there’s so much wrong with Aila’s letter.
The $10,000 fines? The only $10,000 fines authorized anywhere in that rule apply to the illegal sale of human remains and burial artifacts (Section 13-300-42), and the illegal excavation or destruction of burial sites in the state.
The prohibition on photography? The only reference I could find is in a rule (13-300-32 Physical Examination of Human Remains), applying to the scientific examination of remains that may be necessary in the processing of historic remains.
(c) Physical examination methods shall consist only of the observation of metric, non-metric, or other relevant traits needed to suggest ethnicity, or a combination thereof, if necessary. Any intrusive or destructive examination method including, but not limited to, x-ray, radio carbon dating, and mitochondrial DNA analysis, is prohibited unless a written request is made to the department and written approval is granted prior to the initiation of any such examination. Photography of human skeletal remains subject to examination pursuant to this subsection shall be prohibited, unless written consent is first obtained from the council where ethnicity is suggested to be Native Hawaiian, or the department, where ethnicity is suggested to be non Native Hawaiian. Failure to comply with this subsection may subject a violator to the penalties stated in section 13-300-43.
That’s a very specific context, stemming from past disputes between native communities and scientists who seek to study human remains. There’s no indication that it would apply to news media outside of this context.
So then I turned to Hawaii Revised Statutes to test the letter’s assertion that state law “strictly prohibits photography.”
The words “photo” or “photograph” do not appear anywhere in the statute, nor are there any limits suggested on news reporting regarding the inadvertent discovery of human remains, Hawaiian or otherwise.
Admittedly, I’m not a lawyer. But, at least on its face, the letter from the DLNR director lacks the necessary substance to accompany the threats.
There’s still the First Amendment to deal with, but I’ll pass on that for today.
Just a hint…The Supreme Court recently ruled that a groups saying the most vile and hateful things in a public protest at the funerals of military personnel who died in combat is protected by the First Amendment. It doesn’t look to me like any photo cleared for being shown on the news is going to come anywhere close to territory that would be unprotected by the First Amendment. But a full look at that issue is best left for another day.