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Freitas v. Administrative Director of the Courts6/16/2004
d alienage (specifically, Japanese tourists)." Id. at 257, 861 P.2d at 5. The cruise company contended that "much of its business is derived from Japanese tourists." Id. at 263, 861 P.2d at 9. This court reasoned, however, that because none of the plaintiffs were Japanese tourists, and " onstitutional rights may not be vicariously asserted, [the cruise company] lack standing to challenge Act 313 on the claim of invidious discrimination." Id.
B.
Freitas asserts the privacy rights of the anonymous woman, stating that "she would have to sacrifice the very right to privacy sought to be preserved by his or her refusal to show identification and sign in." Although this court in Kam held that clerks at an adult bookstore had standing to assert the privacy rights of their customers to purchase sexually explicit material, this situation differs. Kam, 69 Haw. at 489, 748 P.2d at 376; see supra n.6. In Kam, this court afforded standing to defendants clerks because "the buyers of pornography . . . are usually never charged with violating HRS § 712-1214(1)(a) so cannot generally raise the privacy issue." 69 Haw. at 489, 748 P.2d at 376 (citing Eisenstadt v. Baird, 405 U.S. 438, 446 (1972) (holding that distributor of contraceptives had standing to assert the rights of unmarried persons who had been denied access to contraceptives because single persons seeking contraceptives were not normally subject to prosecution). The woman who was subject to the identification procedure could have directly challenged the restrictions and, thus, there is no need to extend standing to Freitas.
VI.
However, Freitas asserts his own right to a public hearing. In support of his position, Freitas cites Press-Enter. Co. v. Superior Ct. of Cal., 478 U.S. 1, 8-13 (1986), which held that the right of criminal defendants to public proceedings resides in the Sixth Amendment while the right of the public and press to a publicly held trial resides in the First Amendment. Although Freitas recognizes that public access to "civil proceedings and administrative cases" was not an issue in Press-Enter. Co., he argues that the test applied in that case supports public access to ADLRO hearings.
In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a tradition of accessibility implies the favorable judgment of experiences . . . [,] we have considered whether the place and process have historically been open to the press and general public.
Second, in this setting the court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question.
These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. But even when a right of access attaches, it is not absolute.
Id. at 8 (emphases added) (internal quotation marks and citations omitted). Regarding the first part of the foregoing test, Freitas asserts that the Director opened ADLRO hearings to the public because the ADLRO Notice of Representation form states, "All records maintained by ADLRO constitute public records and may be available for public inspection." As to the second part, Freitas contends that "public scrutiny of ADLRO hearings is highly desirable to ensure that arbitrary and capricious government action is not the basis for revocation or non-revocation of driver's license."
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