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Frequently Asked Questions in
State of Florida v. Kevin E. Wood
Can any individual state court simply decide the degree to which that state's constitution guarantees free speech rights?
Yes and no. The Supreme Court has said that states may give greater free speech protection to state citizens than the U.S. Constitution does. However, a state can not decide that it's constitution give less protection than the U.S. Constitution. In other words, the U.S. Constitution recognizes a floor for human rights. All states are required to honor at least those rights. A state may grant state constitutional rights greater than that provided by the federal constitution. Not every state has a state ceiling, although they all have a federal floor.
Which states allow for greater protection of free speech on privately owned property under individual state constitutions than the U.S. Constitution?
There is case law that suggests that the courts in Ohio, New York, Michigan, and Alaska, among others, have viewed their respective individual state constitutions as providing no more free speech protection than the U.S. Constitution. Those states only recognize the federal floor. On the other hand, states like New Jersey, California, Connecticut, Oregon, Washington, and Pennsylvania, to name a few, provide state constitutional guarantees of free speech greater than that provided by the U.S. Constitution. That is, those states have a state ceiling beyond the federal floor.
If Kevin Wood wins does this mean that no mall owner has the right to exclude anyone involved in free speech activities guaranteed by the U.S. Constitution or by the Florida Constitution?
No. Property owners, using state statutes prohibiting trespasses, have the right to exclude unlawful conduct, despite the fact that the conduct might be couched in terms of 'free speech'. Also, even if Wood wins on the grounds that the Florida constitution provides greater free speech activities to Florida citizens than the U.S. Constitution, property owners still have the right to place reasonable regulations on the time, place and manner of free speech on their property. Thus, while it may be an unconstitutional restriction for the Panama City Mall and the police to ban Wood's speech, it is not unconstitutional for the Panama City Mall to require Wood to converse with potential constituents at certain times during the day or to be restricted to certain parts of the mall.
