Restrictions on teaching surfing in Maui

Please note that these are documents in progress - kindly ignore type-o and abbreviatons!

ISSUES;
1. Religious Expression
2. Public Forum
3. Discrimination
4. Social/Political Expression
5. Artistic Expression
6. Expressive Association

1. Here plaintiffs contend that surfing for many of it’s practitioners is expressive activity conducted in traditional public forums. To many it is the core of their religious and spiritual practice. As such the government’s ability to regulate surfing and or the teaching of surfing is limited. There is a large body of evidence that supports this contention.

Historically this is evident in the multitude of references of the religious importance of surfing to its practitioners and their culture and the larger counter-culture that exists. With the renewed respect for and resurgence in indigenous and authentic life in Hawaii, surfing is often held as an example of one unadulterated aspect of true Hawaiian life. Something that along with ‘Aloha’ can be shared with all people and held as a cultural example of the higher spiritual aspirations of all. To it’s devotees surfing is indeed considered a religious act and pursuit (2.).

One of the many examples that support the idea of surfing as a religious activity is found in a recent paper by Bron Taylor published in the JAAR (Journal of the American Academy of Religion - Taylor J Am Acad Relig.2007; 75: 863-874), “Aquatic Nature Religion”, where he states, in brief; “…For some, surfing clearly is a religious experience, and it does not take long analyzing material surf culture or it’s associated rhetoric to see it’s spirituality-infused nature. Religion observer Melekian concluded accurately that surfing resembles religion in important ways asserting that it makes one more compassionate towards both people and nature…. Surfing has a spiritual aura that you only get once you have experienced yourself…” (full text, ref.8).
Even in the beginning, the surfboard was a religious icon (ref.9e). The early Hawaiians viewed their surfboards not only for recreation, but as tools for worshipping the ocean. Riding the oceans energy was a reverential act, and an integral part of the ancient religion of the Polynesian Islands (2a.).

While religion has been defined broadly by the US. Supreme Court, it is a well documented fact that surfing was certainly an intrinsic part of the religious practices of ancient Hawaiian’s (ref.). Present day devotees are no less moved and inspired. Author Steven Kotler presents his spiritual journey through surfing in his book, “West of Jesus: Surfing, Science and the Origin of Belief” (Bloomsbury, June 2006) in which he conducts an exhaustive investigation into the science and nature of faith, concluding that the act of surfing is fundamentally religious. (ref.2).
It is well established that a law enacted to discourage a specific group from engaging in first amendment protected activity is subject to strict scrutiny.

Again, at issue here; is surfing and its instruction fully protected because for many practitioners it is a core religious belief and fulfillment of cultural identity? Is it protected in Hawaii because of it roots as a religious/political/social act?

While many surfers view surfing as the core of their religion others also passionate about the activity regard it as integral to their philosophy. An activity that is inextricably intertwined with their political, religious, sociological, and ideological identity.

Throughout the world, surfing has had a similar impact and position in peoples lives. For example, Nancy M. Vicoorin-Vangerud (2003) summarized and interpreted survey research by Bentley and Hughes (1998) in this way: When Peter Bentley and Philip J. Hughes….. Surveyed Australians about where they most often experience a sense of peace and well being, 71% of the respondents replied, ‘by the sea’ (1998:108). Other answers included ‘in the bush’ (66%), ‘with family’ (64%), with friends (59%), ‘in a garden’ (56%), praying and church services only 29 and 28% respectively. Upon closer examination, for some persons the sea takes the place of churches, for others, the spiritual resources of the natural environment exists alongside traditional religious resources. In fact, the people who attend church regularly were just as strong in affirming the sea as those who did not attend church”. This suggests why a sense of spiritual serenity is common among surfing cultures and sub cultures, (in part at least because it is common among many people well acquainted with the sea), and it further illustrates why some surfers use religious terminology to express their sea-related feelings. All of which further underscores the importance of, and right to, allow unencumbered access to this activity and expression.

2. Also at issue in the present case is the question of whether the beach and ocean near the shoreline is a traditional public forum? Certainly in the case of Leydon v. Greenwich, CT, 257 Conn. 318 (2001) it was affirmed by the Connecticut Supreme Court that restricting municipally managed beach access to the public was unenforceable. The Connecticut Supreme Court focused almost exclusively on the First Amendment argument that the beach was a traditional public forum.

In the case at hand the government’s apparent goal is to reduce crowding, presuming then that students without friends or relatives to teach them for free have the same right of access to the ocean and its surf as those who receive instruction for a fee. It is apparent that the code section takes large numbers of instructors out of the picture only because they help people who don’t know anyone else willing to provide the exact same information and instruction, regardless of whether or not there is a fee involved.

3. In this case the proposed regulations were admitted by the Parks Department director to be for the benefit of local residents who perceive over crowding at some popular surf breaks. The method to reduce crowding however has the clear effect of placing the burden of reducing surf crowding almost entirely on “outsiders” also known as tourists and those who may wish to learn and engage in this spiritual and cultural activity. The regulations are most discriminatory on holidays where the reduction is borne approximately 90% by tourists. The method chosen to reduce crowding is almost entirely directed against tourists. Given that Hawaii has 12 months of possible surfing it is generally easy for residents, especially long time residents, to find a family member or family friend to help their children or themselves learn to surf – with far more available time and opportunity than the average tourist visit of one week.
Individuals who do not know anyone on Maui are unlikely to find someone to volunteer to teach them about surfing. Parents who wish to have someone teach their children about surfing are unlikely to be able to find a volunteer, qualified or otherwise.

However for many years in Hawaii residents and tourists have been able to find a professional surf instructor. Surf Instructors typically cover a wide range of material including the religious and cultural history of surfing in Hawaii, the esthetic of surfing maneuvers, the elements of ocean safety and respect for the environment. The first wide availability of surf instruction by professionals was the Wai Kiki beach boys Duke etc.
Currently the state of Hawaii through DLNR, and the County of Maui through the parks department are attempting to discriminate against instructors who require payment as compared to instructors who provide instruction for free and also discriminates against the people, primarily visitors, who are unlikely to know anyone locally to teach them – for a fee or otherwise.
If the Government can meet the burden of proving a serious risk, it can regulate surfing’s popularity by many methods which treat all of those who wish to teach about surfing, for a fee or not, equally. Limits on the number of surfers in the water at the few particularly crowded spots at peak hours would be equally effective, but would not discriminate against surfers unable to live without income from teaching surfing, or their clients.

4. At question also is what characteristics of teaching surfing suggest that instruction regarding surfing in Hawaii is protected fully by the First Amendment? Apart from the shortsighted efforts of the missionary’s of old to forbid the ‘sinful pleasures’ of surfing, there is no legal precedent regarding any effort to ban surfing or the teaching of surfing to refer to. However it’s cultural, political and historical importance and significance has been well documented.

As an initial matter, it is unquestioned that the First Amendment protection is not lost simply because the protected expression is sold for profit. See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n. 5, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (expressive items are no less protected than they would otherwise be under the First Amendment merely because they are sold for profit); see also Riley v. Nat'l Fed'n of Blind of North Carolina, 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (“It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.”). It is also unquestioned that the First Amendment shields far more than just written and spoken forms of expression. *1138 See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). However, contrary to plaintiff's assertions, all visual art is not historically and unquestionably entitled to full First Amendment protection. While the Supreme Court has found protection for a broad array of artistic expression, including music, theater, and film, see, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (music without regard to words); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (theater); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (film); Miller v. California, 413 U.S. 15, 34-35, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (“expression of serious literary, artistic, political, or scientific ideas,” unless obscene in legal sense); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-34, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (topless dancing), as well as for many instances of expressive conduct, see e.g. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (parades); Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (peaceful marches to express grievances to governmental authorities); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing of black arm bands to evidence disapproval of U.S. involvement in Vietnam); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (sit-ins to protest racial discrimination); and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (refusal to salute flag), it has not provided blanket protection for all visual art. The Supreme Court, however, has explained that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley, 515 U.S. at 569, 115 S.Ct. 2338 (citation omitted).

The direct impact of paid instructors is no different than volunteer instructors. The increase in the number of surfers is not by any means entirely the result of the availability of competent professional instructors. Interest in surfing has been going up world wide and most southern California breaks (and beaches) are vastly more crowded than any location in Hawaii.
(A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials; such is the case when a permit or license requirement places unbridled discretion in the hands of a government official. U.S.C.A. Const.Amend. 1.)
Surfing was not only a sport for Hawaiians, but it was also an integral part of their social structure. Surfing was part of the Kapu system of government on the islands. This system maintained a sense of order and societal classes. Surfboards were divided into classes according to the type of wood used and the length of the boards. The largest and heaviest were reserved strictly for Hawaiian royalty. They were prominently displayed as status symbols and that of social ranking and political power. (1&2.).

Indeed even the very determined and almost overwhelming oppression of the puritanical missionaries, who in their misguided benevolence, deemed surfing to be sinful in its pleasure, were unable to extinguish the vital and ingrained spiritual flame of surfing. As they did with all traces of indigenous spiritual practices such as hula, chanting and the native tongue, the missionaries did their utmost to stamp out these empowering religious rites. However, all of these vital indigenous religious practices have survived due to both their essential importance to and the tenacity of the culture and its people.

Ancient Hawaiians practiced the art of surfing as part religion, part sport and as a large part of their social structure. (2a). This supreme pleasure of surfing was deeply rooted in centuries of Hawaiian legend and culture. Place names were bestowed to honor and remember legendary surfing incidents. The Makahiki festival, an annual celebration to the god Lono, featured surfing rituals. The kahuna intoned special chants too to christen new surfboards and to give courage to men and women who challenged the waves.

Surfing was used as a means to settle disputes among the people. Wealth, social standing, land holdings and even matters of the heart were all settled with surfing contests.

Surfing has been considered a vital form of expression and protest. Practitioners have felt compelled to take this most personal form of expression to the waters on many occasions when moved to oppose or protest a given issue. This has been recognized as a means of protest all over the world, (ref.3-7). It is also recognized as a common forum for funeral ceremonies to mourn the passing of any person, whether surfing devotee or not.

5. Surfing is closely related to expressive dancing as an art form (as defined in expressive association) which has been found to be expressive speech or “Right of expressive association” which is protected by the first amendment. Although the argument for what activity is in fact “expressive association” has been analyzed in the case of Dallas v. Stanglin, 490 U.S. 19, 24-25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989), Justice David Souter, in his concurrence, goes further than Scalia with regards to the status of types of dancing under First Amendment analysis: “Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment’s protection, Dallas v. Stanglin, 490 U.S. 19, 24-25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment’s concern. But dancing as a performance directed to an actual or hypothetical audience gives ‘expression’ at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. … Although such performance dancing is inherently expressive, nudity per se is not.”
Is this activity protected because in competition it is evaluated in large part on esthetic considerations? Because it inspires a “political, religious, ideological” view point to the spectator the same argument used in the as White vs. City of Sparks (No.05-15582, 2007). Its definition of art and as self expression focuses on the relation to the ‘message’ or effect on the spectator….. ‘If it imparts a political, religious or ideological impression’… it is defined as art and self expression protected by the first amendment. Surfing certainly imparts an ideology to the spectator.

Esthetically speaking the physical activity itself is oftentimes compared to dance. The poise, the balance, the dancers flourish and technique. All the requisite practice of mental and physical focus and training exists. It is a defining act, the beauty and artistic expression of surfing sets it apart from a mere sporting pastime or mindless recreation. Combine this with the inherently intimate relationship the ‘performer’ has with the elements (wind, water, air) and it is at once elevated to a deeply spiritual art form. Art as expression is protected by the first amendment.
Is surf instruction protected because of a long tradition of revering surfboards as esthetic/artistic/religious items?

Creating surfboards was/is also a religious ceremony in the Hawaiian culture. Only three types of wood were suitable for crafting traditional boards. Surfers took special care in selecting a tree, recited prayers and placed fish in a hole at the base of the tree. Only once all these rituals were performed would the tree be cut down and used for a surfboard. Similarly to the great works of art offered up in the celebration of many recognized religions, surfboards have been the chosen vehicle and canvas for many visual artists to manifest their visions inspired by the practice of surfing. (ref.7, 9e)

6. We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a “right of expressive association.” See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640, 644, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one's voice with the voices of others. See Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). If the government were free to restrict individuals' ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect. Ibid. Rumsfeld v. Forum for Academic and Institutional Rights, Inc.547 U.S. 47, 126 S.Ct. 1297U.S.,2006.March 06, 2006
Likewise, if the government were free to restrict individuals' ability to join together and surf or learn to surf, it could essentially ‘silence’ the “expressive association” of creativity, inspiration and the pursuit of what for some is a spiritual experience – essentially what the First Amendment is intended to protect.
Surf instructors and surf students alike have this “Right of expressive association” as defined in the 1984 decision Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) where the court identified two types of Freedom of Association with constitutional protection – intimate association (“intimate human relations”) and expressive association (“engaging in those activities protected by the First Amendment – freedom of speech, assembly, petition for the redress of grievances, and the exercise of religion).
In Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), the Supreme Court found that where the commercial and expressive parts of speech are “inextricably intertwined,” a court could not parcel out the protected and unprotected parts of the speech. This court has applied the “inextricably intertwined” standard to merchandise like that at issue here; the Gaudiya court found that the plaintiffs' street sale of merchandise with messages affixed to the products was fully protected because the commercial and noncommercial aspects of speech “inextricably intertwined.” Gaudiya, 952 F.2d at 1064-65; see also One World, 76 F.3d at 1012 (finding sale of merchandise bearing political, religious, philosophical or ideological messages “inextricably intertwined” with other forms of protected expression).

The district court relied on One World to find the ordinance here a valid time, place or manner restriction. Accordingly, appellees rely primarily on One World to support their case. However, in One World, the restriction did not discriminate against certain types of speech depending on the speaker. In fact, in One World, when the court analyzed whether the ordinance was narrowly tailored, it reasoned that the ordinance was narrowly tailored because it addressed the government interests “without ... significantly restricting a substantial quantity of speech that does not create the same evils.” 76 F.3d at 1014 (citing Ward, 491 U.S. at 799 n. 7, 109 S.Ct. at 2758 n. 7).
Here, defendants claim to be prohibiting the evil of commercial activity by prohibiting all surf instruction not done for free. However, the nonprofit distinction significantly restricts a substantial quantity of speech - namely expressive speech by people who are not nonprofit - that does not create the same evils as purely commercial activity on the beaches what the government admittedly wants to restrict. Thus, applying the reasoning of One World, rather than merely looking to its result, one can see that the ordinance at issue here is not narrowly tailored to serve government interests.
(White/City of Sparks)….The First Amendment protection of free expression is not lost simply because the protected expression is sold for profit. U.S.C.A. Const.Amend. 1)
A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials; such is the case when a permit or license requirement places unbridled discretion in the hands of a government official. U.S.C.A. Const.Amend. 1.
To determine whether a prior restraint on speech violates the First Amendment, the question is whether the standards to guide the official's discretion are so imprecise that discriminatory enforcement is a real possibility. U.S.C.A. Const.Amend. 1
It is clear that there are limits to the breadth of the First amendment protection such as - The Sabin vs. Butz 515 F.2d 1061, 1975-1 Trade Cases P 60,262 United States Court of Appeals,Tenth Circuit example. is not applicable to this case as there were no intrinsically religious, historical or cultural arguments presented in association with skiing or its pursuit. It also dealt with third party permitees. It was denied on the grounds that it did not infringe on protected First Amendment Rights.

And indeed, there are many useful limits to what can be reasonably defined as “art” that may enjoy first amendment protection, that have often been rigorously challenged even within some of the cases cited here. However, in relation to the activity and pursuit of surfing, it is, as clearly detailed in this memo, undoubtedly held to a higher standard than that of simple recreation or sport.