glynch -- you're right...i'm biased. trust the aclu to tell you the truth on this. this article cites 2 cases and state law in 7 states. how about the other 43? by the way...the supreme court of the united states is a more important forum for first amendment issues than the supreme court of missouri. this is an op/ed piece, glynch..not legal authority: "Malls and shopping centers should honor the spirit of the United States Constitution and welcome the opportunity to contribute to society by allowing peaceful political activities on their premises." please don't impugn my credibility with an op/ed piece when it can be impugned in so many other ways so easily!
I agree Glynch's article, being an editorial from the ACLU, is biased as can be, but it does raise the issues over which the case could be argued. I have sympathy for the premise: " And 7 higher court judgements may be the minority, but it is a precedent. It shows the position is not as irrelevant as one might think if you restrict your arguments to trespass. I still cannot accept that property owners should be subjected to any ad hoc demonstration. But I can't just dismiss the 'public place' debate by looking at the property deed. Looks like an interesting case. Sharpen your pencil, Max, you may have a constitutional challenge on your hands. Get a BIG retainer for this one, because the ACLU's got lotsa smart lawyers too.
Max, I just found Glynch's article (for once ) articulated what I had been been trying to say. Not sure I fully agree with it, but I did find it relevant. This isn't always the case with Glynch's references. (sorry Glynch -- still laughing at Clutch's Glynch expose -- and don't want Max to think I've gone soft).
Max, if the law allows this free speech in 7 states, it can't be unconsitutional. Are you saying that the law in 7 states is unconsitutional. Now you need to prove this. Sounds like the Surpeme Court has left this up to statutes and the indvidual states.
glynch..i think this answers your question...from lexis.com... this is those crazy republican texas judges saying that pro-life demonstrators can't make the argument this lawyer is making in New York...this gives a pretty good historical synopsis on the law on this issue. the bolded sections answer your questions...the supreme court hasn't called anything here unconstitutional...states are allowed to extend liberties above and beyond those of the federal government...they can't be restricted more than the federal government's standards. i did cut this case off when it started going into protests at abortion clinics specifically, because that seemed off topic. if you want the rest, you have the citation for the case now. 827 S.W.2d 408, *; 1992 Tex. App. LEXIS 443, ** CLIFFORD LOUIS ZARSKY, Appellant, v. THE STATE OF TEXAS, Appellee. NUMBER 13-91-111-CR COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI 827 S.W.2d 408; 1992 Tex. App. LEXIS 443 February 20, 1992, Delivered February 20, 1992, Filed jury found appellant guilty of criminal trespass, and the trial court assessed his punishment at thirty days in jail. Appellant asserts that his conviction violates the free-speech and assembly provisions of the United States and Texas Constitutions, that the evidence is insufficient to sustain the conviction, and that the trial court erred in excluding evidence and in failing to submit his requested instructions to the jury. We affirm. Appellant was arrested at the [**2] Stonegate Professional Office Complex in Corpus Christi (Stonegate), while anti-abortion protestors sat on a walkway outside an abortion clinic, blocking its doors. Appellant, who was described as part of the protest leadership, was arrested as he stood in the parking lot, about eight feet from one of the clinic's doors, next to a pole which supported the roof covering the walkway. Appellant was not personally blocking the clinic's door. Less than a half-hour before his arrest, William Hopkins, the owner of the complex, notified appellant at a face-to-face meeting to leave the premises. Appellant was charged with violating Texas' trespass law by remaining on Hopkins' property without Hopkins' consent after he had notice to depart but failed to do so. See Tex. Penal Code Ann. § 30.05(a)(2) (Vernon 1989). In his first point of error, appellant contends that his activities at the clinic were protected under the First Amendment of the United States Constitution and under Article I, §§ 8, 27, and 29 of the Texas Constitution. n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 HN1Article 1, § 8 of the Texas Constitution provides: Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press . . . .HN2 Article 1, § 27 provides: The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. Article 1, § 29 provides: To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**3] We find the federal constitutional issue resolved by Hudgens v. National Labor Relations Bd., 424 U.S. 507, 47 L.Ed.2d 196, 96 S.Ct. 1029 (1976). In Hudgens, warehouse employees of a company with a retail store in a shopping center were found to have no First Amendment right to enter the shopping center to advertise their strike against the company. Hudgens followed Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972), in which the Court held that persons protesting the Vietnam War did not have a First Amendment right to distribute handbills in a large shopping center. In Hudgens, the Court reiterated that it was rejecting the rationale of and overruling Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968), in which the Court had held that peaceful picketers in a large shopping center were protected by the First Amendment. Although appellant argues that Hudgens and Lloyd did not overrule Logan Valley, the Supreme Court has acknowledged that Logan Valley has been overruled. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980); [**4] Flagg Bros. v. Brooks, 436 U.S. 149, 159, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978). HN3Under the First Amendment to the United States Constitution, before a private property owner can be subjected to another's free-speech rights, the privately-owned property must assume to some significant degree the functional attributes of public property devoted to public use. Central Hardware Co. v. National Labor Relations Bd., 407 U.S. 539, 547, 33 L. Ed. 2d 122, 92 S. Ct. 2238 (1972); see Hudgens, 424 U.S. at 516; Gibbons v. State, 775 S.W.2d 790, 793 (Tex. App.--Dallas 1989), pet. ref'd, No. 1243-89 (Tex. Crim. App. September 25, 1991) (not yet reported); Hoffart v. State, 686 S.W.2d 259, 262 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd); Rains v. Mercantile Nat'l Bank, 599 S.W.2d 121, 123-24 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.). The evidence in the instant case shows that the property was generally used for commerce and that on one prior occasion, pro-choice demonstrators had gathered at the site. Hopkins had not given his permission for that demonstration. There is no evidence that the office complex assumed the functional attributes of public property devoted [**5] to public use. We find no First Amendment protection for appellant's activities. We thus turn to the protections afforded appellant by the Texas Constitution. n3 The Texas Constitution's affirmative grant of free speech is more broadly worded than the First Amendment's proscription of Congress from abridging freedom of speech. O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402-403 (Tex. 1988). While no Texas case has held that Texas must grant broader speech freedoms than the First Amendment, appellant urges us to do so, relying in large part on California's decision to interpret a provision of its Constitution broader than its federal counterpart. n4 See Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854 (Cal. 1979). The California and Texas Constitutional provisions are almost identical. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 A state may adopt by its own constitution liberties more expansive than those conferred by the federal constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980). n4 Although two Texas cases have held that the Texas Constitution is interpreted co-extensively with the First Amendment, we will address the merits of appellant's complaint. Gibbons, 775 S.W.2d at 793-94; Reed v. State, 762 S.W.2d 640, 644 (Tex. App.--Texarkana 1988, pet. ref'd). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**6] In Robins, the Supreme Court of California concluded that its State Constitution protected speech and petitioning, reasonably exercised, in a large, privately-owned shopping center. Robins, 592 P.2d at 347. Our research reveals that a number of states have constitutional provisions worded similarly to those of Texas and California. Only a handful of those states have adopted positions consistent with California's decision in Robins. See Batchelder v. Allied Stores Intern. Inc., 88 Mass. 83, 445 N.E.2d 590 (Mass. Sup. Jud. Ct.-- Essex 1983); Alderwood Assocs. v. Washington Environmental Council, 96 Wash.2d 230, 635 P.2d 108 (Wash. 1981); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (N.J. 1980). Most states having constitutions similar to California's and Texas' have refused to adopt California's approach. See Bock v. Westminster Mall Co., 797 P.2d 797 (Colo. App. 1990, cert. granted); Fardig v. Municipality of Anchorage, 785 P.2d 911 (Alas. App. 1990); Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz. 371, 767 P.2d 719 (Ariz. App. 1988, rev. denied); Jacobs v. Major, 139 Wis. 2d 492, 407 N.W.2d 832 (Wis. 1987); Western Pennsylvania Socialist Workers [**7] 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (Pa. 1986); Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337 (Mich. 1985); Shad v. Smith Haven Mall, 66 N.Y.2d 496, 488 N.E.2d 1211, 498 N.Y.S.2d 99 (N.Y. 1985); Cologne v. Westfarms Assocs., Inc., 192 Conn. 48, 469 A.2d 1201 (Conn. 1984). In these states, the business property owner has a right to exclude third-parties from exercising forms of speech on the property.
Max, so you are agreeing that it is not unconsitutional per se and that some states allow this much free speech. Sadly I would not have expected Texas to be in that group and apparently they are not. Many of us would urge Texas to join the minority of states who allow this, you apparently would not.
P.S. Max, we trapped you into doing some free legal research. hehehe. Thanks Does anyone else have any other questions, Max can answer for free?
1. you're exactly right...it's never unconstitutional for a state to say they can extend your personal liberties past the federal constitution. think of the federal constitution as a floor...as a minimum requirement of individual rights. the state can go above and beyond...but they can never go below the standards of the federal government. i think we actually fought a war over that! 2. i don't know how i feel about this...i'm really torn on it. i do understand the arguments that the modern day mall has become a kind of town square...but i think you have to juxtapose that interest with the private interests...i mean, if we're going to say that free speech and demonstrations are allowed in a mall, are we going to hold the mall responsible when things go bad? when a fight breaks out (as it is almost certain to do somewhere in this country at a demonstration) are we going to give the mall some sort of governmental immunity? it seems to me that if you don't, you're placing a real burden on anyone to operate a shopping center. not only is he responsible now for maintaining a business, he's also responsible for insuring the public's safety at demonstrations. that's quite a burden. and good luck getting liability insurance at that point...which means the cost is ultimately passed along to people like you and me. but i'm not completely insensitive to your argument. i can tell you i'm deeply disturbed that it took a court ruling just last week to overrule case law that allowed anti-abortion protesters outside of abortion clinics to be prosecuted under racketeering/criminal charges (RICO) simply for voicing their opinions. That baffles my mind. you're very welcome...unfortunately, my account with lexis is texas law only...i have to pay for federal cases. we do 99% of our work in state courts...i wasn't about to pay for a federal case to satisfy this debate! fortunately, this case accounted for the state of the law federally and in the state.
From March's ABA Journal: http://www.abanet.org/journal/redesign/03npub.html DEFINING A PUBLIC SPACE Courts Interpret the Meaning of ‘Traditional Public Forum’ BY MOLLY McDONOUGH If it looks like a duck and quacks like a duck, it probably is a duck. Courts are using that reasoning to differentiate public spaces from private spaces in First Amendment cases. Increasingly complex public-private property deals look like ducks, but may not be. Mixed-use developments, easements and private subdivisions are a few examples. “Traditional public activities are increasingly being squeezed or confined to a larger private world in which public activities take place,” says lawyer and urban planner Jerold S. Kayden, author of Privately Owned Public Space: The New York City Experience. Still, he predicts courts will continue to allow access to these hybrid public forums so long as they resemble forums of the past. Mark Lopez, a senior staff lawyer with the American Civil Liberties Union in New York City, says courts look at traditional physical characteristics, coupled with the historical or intended purpose of the space, to determine whether it’s public. “The more it looks like its historical antecedent—a street, a sidewalk—the more likely the court is going to treat it like nothing has changed,” Lopez says. “As a general rule, the line is drawn to protect the right to assemble in public without restriction.” The public won such protections in October, when the 10th U.S. Circuit Court of Appeals in Denver ruled that the Mormon church cannot restrict conduct on Salt Lake City’s Main Street Plaza, which looks like a public sidewalk. The church bought the land, adjacent to its Salt Lake Temple, in 1999 for $8 million. But the city retained an easement stipulating that the block remain open to the public. First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114. A month later, the 2nd U.S. Circuit Court of Appeals in New York City reached a different result. The court ruled that Manhattan’s Lincoln Center Plaza could not be used as a traditional public forum for union activity, because it was designed as a forecourt to the performing arts centers there. Hotel Employees v. City of New York Department of Parks and Recreation, 311 F.3d 534. New York lawyer Charles S. Sims, who represented Lincoln Center, says the area has a particular purpose. “It’s not like it’s Central Park, a Hyde Park corner or the Washington Mall,” he says. “It was always intended to be privately controlled space, with a purpose to funnel people into the halls.” Lopez, who represented the amici in favor of access, says he believes the plaza should be public, but he understands the court’s rationale. “The overwhelming bias by the court is that the Lincoln Center is a place apart, raised from the ground by steps. People think of it as a garden or outdoor lobby for the five performing arts centers,” Lopez says. NOT SO PRIVATE Kayden has studied 503 privately owned public spaces in New York City, dating to 1961 when the city allowed buildings to exceed zoning limits if they maintained a public space such as a park. Half of those “public spaces” were closed to the public, he says, leading to a civil action by city officials claiming the owners failed to provide open access. Kayden says litigation probably will continue, especially in cases involving privately owned spaces with characteristics of public arenas. Shopping malls come to mind. So do private subdivisions and stadiums that serve as public arenas. “Over the past decade, there has been a shift away from publicly owned areas where public activities would take place, to privately owned areas where public activities take place,” Kayden says. When this happens, individuals have to tread on private property to share their political, ideological or commercial views. Kayden says governments may avoid litigation by letting owners know up front that the property should be open. “What they have to make clear to the private owner is that the Constitution applies to what the private owner is giving up,” he says. * * * * * * * * * * MadMax - while ideologically I am a "private property" kind of guy, I think the tide may be running the other way. Your case (which was on point) is a 10 year old case out of Corpus Christi citing Supreme Court cases that are almost 30 years old. Without doing the research, I would guess that the court decisions that have decided in favor of free speech over property rights are more recent. I think we all (most of us anyway) can agree that the shopping center security guards and owner were/are incredibly stupid.
Pipe -- that was just the first case i found on lexis...the first with any sort of historical "how have the courts interpreted this issue" approach. i'm certainly not saying the corpus christi court is a beacon for the nation! i totally agree that the sentiment will be to make change here...again, i think there are lots of issues being glossed over entirely, which i've made mention of a few times. the aclu doesn't address those issues...the lawyer in your article doesn't address those issues. even if these cases start to turn, you will still certain speech prohibited in the quasi-public facilities. there is still a business interest to be preserved.
http://www.freedomforum.org/templates/document.asp?documentID=2975 Federal judge throws out free-speech case against shopping malls By The Associated Press 07.10.00 ALBUQUERQUE, N.M. — A federal judge who threw out a lawsuit that accused Albuquerque shopping malls of stifling free speech says that for more than two decades, federal law has considered malls private property whose owners can regulate activities within them. The SouthWest Organizing Project, in a lawsuit filed in 1998, argued that the private property status of the three large malls in the city changed when the malls decided to rent space for government agencies for such functions as motor vehicle registration, voting booths and police substations. SWOP officials did not immediately return a phone message on July 7. In a 44-page ruling June 27, 10th U.S. Circuit Court of Appeals Judge Paul Kelly of Santa Fe said SWOP failed to prove the malls "dedicated their property to public use." He said the majority of the space leased at the malls is for commercial business and that less than 1% of the space is devoted to government entities. The government uses include Motor Vehicle Division offices at two of the malls, police substations at two malls, park-and-ride programs and an unmanned drive-up postal facility at one of the malls. "The question was, does that public presence really change the shopping center into some public area for all kinds of free-speech activities?" said Norman S. Thayer, an attorney for one of the malls, Winrock Center. "Judge Kelly decided that the answer is no." Kelly's ruling said he focused only on "what this lawsuit is about" — free-speech questions, not SWOP's underlying claims of discrimination. Kelly said that is being dealt with in a separate federal lawsuit. SWOP alleged mall security and Albuquerque police officers prevented its members from distributing leaflets that alleged some mall policies were discriminatory toward certain minority youths.
http://governing.com/view/vu061900.htm this from New Jersey: The Greens took Hartz Mountain to court, arguing that requiring such an expenditure for a small, cash-strapped political party amounted to a prohibition on free speech. A lower court found for the mall, which led to the unanimous decision in favor of the Greens by the state Supreme Court. “Leafletting in heavily visited shopping areas has a very high value in our system of political discourse,” wrote Associate Justice Daniel O’Hern. “Putting too high a price on the exercise of freedom may destroy it.”
the first time i've seen some of my concerns addressed in any piece...and it comes from a free term paper site!! http://www.free-termpapers.com/tp/26/lfm148.shtml Impact How do the decisions from these cases affect the shopping center industry? Centers that are located in a state whose constitution offers the freedom of speech more protection than the Federal Constitution (California, New Jersey, Oregon, Washington, Colorado and Massachusetts) have a slightly heavier burden to carry than those in other states. A shopping center manager must now formulate standard operating procedures that state where all “demonstrations” will take place, when they can be held and how they are to be held in order to minimize disruption to customers and merchants. Although the courts have given shopping centers great latitude to regulate these “demonstrations”, they have provided a whole new avenue of litigation. Each section of a mall’s standard operating procedures is questionable and, therefore, litigious. Why was one area chosen over another? How come a higher customer trafficked area couldn’t be used? Why doesn’t the mall allow someone to demonstrate every day and what’s wrong with having two opposing groups demonstrating at the same time? Is it too burdensome to require organizations to provide insurance as a precondition to using mall property? If not, than what dollar limit of insurance is sufficient to protect the mall’s best interest? Answers to these questions must be applied to all demonstrations uniformly and without bias. Potential new litigation to come from California, New Jersey, Washington, Oregon, Colorado and Massachusetts might raise the question of whether a shopping center needs to subsidize demonstrations on mall property. Since the insurance policy the mall requires primarily benefits the mall, shouldn’t the mall pay for it and not the demonstrators? Might the mall be required to pay for other items that the demonstrators can’t afford, like signs? As a certified shopping center manager with over ten years of experience and a member of the International Council of Shopping Centers, I am troubled by the rising legal costs of doing business. (Cesare 1) The general public is invited into shopping centers to spend their money on food, apparel and/or entertainment. Newspapers are not forced to print editorials, shopping centers should not be forced to allow someone access to its valuable commodity, customers, without some type of reimbursement
you started the thread...you can expect my bill around the end of the month! (working on a settlement and waiting for a phone call from the other side..don't want to get started on something else before then!)
fortunately for you, i accept that means of payment here. "'cause the law firm of MadMax will gladly take your tickets and beer...but they don't take American Express..."
here's a thought...in these states where malls are deemed to be public property...what happens when the Klan shows up? or anti-abortion protesters with those large billboards showing aborted fetuses? you have to allow them equal access, right? how long will your tenants stay in your mall if that's the case?
