Derrick DePledge has a piece in the Star Advertiser today about a bill that
holds that authors and in some cases publishers of visitor guides and websites have a duty to warn readers of dangerous conditions. The bill would require authors and publishers to defend and indemnify private and public landowners from liability for injury or death when people trespass. It would also create a task force to identify problem areas statewide.
I don't know which version of the measure this Hawaii ACLU's submitted testimony on HR. 548, HD2, relating to trespass relates but, in any case, it would seem to apply perfectly well to the current version
The American Civil Liberties Union of Hawaii (“ACLU of Hawaii”) writes in opposition to H.B. 548, HD2, Relating to Trespass, which purports to allow for civil liability against publishers of visitor guides if readers who trespass on private property are injured or killed.
H.B. 548, HD2, poses a litany of constitutional issues. The subject material, visitor guides and visitor guide websites, are protected by the First Amendment. Moreover, it is well settled that state tort laws cannot circumvent or override the protections afforded by the First Amendment. See, e.g., New York Times v. Sullivan, 376 U.S. 254,265 (1964). State tort laws, which seek to impose civil liability on publications, have a substantial chilling effect on the publishers and distributors of such material. Accordingly, the ACLU opposes H.B. 548, HD2.
4 comments:
It seems to me that a publication is already liable now if it says something like, "Go to Queens Bath, have fun and don't worry about waves or surf! It's perfectly safe since it's only water!" To me, if I relied on that statement which was published in exchange for money (vs. a non-commercial publication) I'd think that some sort of neglegence would apply. Guess not, huh?
3/22/2011 4:22 PM
"I'd think that some sort of neglegence would apply."
Yes...negligence on your part. Geez, every kid gets the "if someone told you to jump off a cliff would you" lecture---din't you? Any fool knows, for instance, that "just water" is lethal if inhaled.
RG DeSoto
RG - You may not be aware but we get all sorts of tourists here, young and old, that have never been near an ocean and have no clue as to its unpredictability and hidden dangers. Most folks know about lakes and drowning, but lakes don’t present the degree of active danger the ocean does. Of course, if waves are erupting ten feet high I'm pretty sure only an idiot would go running in and maybe you feel this is a law of the jungle and evolution at work, but I've lived here all my life and many folks just aren't aware. To me this is not an issue of trespassing and private property; that's a whole separate matter. This is about publishers leading people into hazardous places, putting them in jeopardy. And doing it as a business enterprise only makes it a worse violation of trust.
I've lived here all my life too...though that has nothing to do with the argument. Coincidently whenever I've visited other places I am careful about where we go & what we do.
There are, as I think we agree, a gaggle of fools in the world. Punishing those only tangentially connected to the ACTIONS of fools is wrong. Fools punish themselves by taking what they read as gospel and avoiding the effort to become more fully informed.
I think we can also agree that there are irresponsible fools among those who write. You or I would in all likelihood add warnings about precarious spots and highlight them. Just good common sense.
Post a Comment