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Jon Van Dyke, a law professor at the University of Hawaii, and Dan Foley, a civil rights attorney, debated two First Amendment disputes current in Hawaii in 1994. The principal issue was whether organizations selling message-bearing t-shirts on Kalakaua Avenue in Waikiki could claim First Amendment protection, and whether the city could remove them under its existing peddling ordinance. Foley, who represented several of the vendors, argued that a Ninth Circuit ruling established their activity as protected speech; Van Dyke, advising the city, maintained that the peddling ordinance was content-neutral and constitutional, and recommended pressing the case to the Supreme Court. Both lawyers agreed the vendor situation was untenable but differed on which regulatory approach could withstand a constitutional challenge. The episode also addressed whether the song Friends, which contains a reference to the Lord, could be performed at public school graduation ceremonies — the Hawaii Attorney General had ruled it could not. Van Dyke regarded the religious reference as incidental and probably permissible; Foley thought reasonable people could disagree. The standing question is how far government may restrict commercially motivated speech on public sidewalks without violating the First Amendment.
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