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Legal Issues in the State of Florida v. Kevin E. Wood Case
The First Amendment of the U.S. Constitution states in pertinent part, "Congress shall make no law ...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."First Amendment law, as it clashes with the rights of private property owners, is in a state of flux. That is, one of the most fundamental property rights is the right to exclude people from one's property. However, one of the most fundamental state and federal constitutional guarantees is the right to free speech. Kevin Wood's situation demonstrates the ground where those two rights collide.
The U.S. Supreme Court has decided that there are only narrowly defined situations in which the First Amendment of the U.S. Constitution trumps a private property owner's right to exclude. One of the first Supreme Court cases to shape the free speech/private property rights conflict was a case named Marsh v. Alabama. In Marsh, the Court held that the arrest of a Jehovah's witness for distributing religious literature on a sidewalk in the town of Chickasaw, Alabama was unconstitutional. Chickasaw was a privately-owned "company town." Generally, private property owners would have the right to exclude a Jehovah's witness from their property. However, the Supreme Court reasoned that Chickasaw was not a normal piece of private property. Rather, the Court held that since Chickasaw opened up its property for use by the public in general, Chickasaw had to yield to the statutory and constitutional rights of the public.
Twenty two years later, the free speech/property rights constitutional analysis took further shape in a Supreme Court case called Amalgamated Food Employees Local Union 590 v. Logan Valley Plaza. In that case, the Court faced the validity of a Pennsylvania state court's injunction requiring union members to picket off of a shopping center's property. As in Marsh, the Court reasoned that the shopping center opened itself to the general public. More specifically, the shopping center was deemed to be a "business block"-i.e. the shopping center was permeable and freely accessible to the public. Thus the Court held that the free speech rights of the labor picketers outweighed the shopping center's right to exclude.
In 1972, the Supreme Court in the case of Lloyd Corp. v. Tanner, etched out just how open to the public one's private property must be in order to lose the right to exclude members of the general public from participating in free speech. In that case, anti-war protesters were enjoined from distributing handbills in an Oregon shopping mall. The Supreme Court held that the mall literally opened itself up to the public because the mall did business with the general public. However, the Court reasoned that the mere fact of doing business with the public did not constitute a company town, as in Marsh, or a business block, as in Logan Valley. Rather, the Court held that the mall did not sufficiently lose enough of its private character to have its right to exclude outweighed by free speech rights.
In 1980, the free speech/ private property rights struggle took on a more complicated form in a case called Pruneyard Shopping Center v. Robins. The Supreme Court dealt with an appeal by a shopping center from a California State Supreme Court decision upholding the free speech and petition rights of individual citizens on property owned by the shopping center. The Court recognized that the nature of the California shopping mall was similar to the shopping mall in Lloyd. Also, as in Lloyd, the Court recognized that free speech rights guaranteed by the U.S. Constitution would not outweigh the California shopping mall's right to exclude. Yet, the Supreme Court acknowledged that the California Constitution also guarantees free speech rights to California citizens. Moreover, the Court held that the California Constitution could provide greater protection for free speech rights than the U.S. Constitution. Furthermore, the Court held that those free speech rights guaranteed by the California Constitution, or any state constitution for that matter, even in a privately-owned shopping mall, like the one in Lloyd, could outweigh the shopping mall owner's right to exclude. This is especially the case since the California Constitution's free speech section is worded differently than the First Amendment to the U.S. Constitution, and therefore, it must have been intended to confer different rights than the U.S. Constitution. Article I, section 2 of the California Constitution reads in pertinent part: "Every person may freely, speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." While Article I, section 4 of the Florida Constitution reads in pertinent part: "Every person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press."
A general lesson to be taken from the Supreme Court in Marsh, Logan Valley, Lloyd, and Pruneyard is: 1)if a private property owner benefits enough from the general populace, the right to exclude a person from the property is significantly weakened, if that person is involved in lawful free speech pursuant to the First Amendment of the U.S. Constitution; 2) if a private property owner does not open itself up enough to the public, like the mall in Lloyd, then the owner's right to exclude members of the general public overpowers a person's right to free speech under the U.S. Constitution; 3) even if the U.S. Constitution does not allow for a citizen's right to free speech to nullify a property owner's right to exclude, an individual state constitutional guarantee of free speech may, as the California Constitution did in Pruneyard; 4) it is for individual states to decide the degree to which individual state constitutional guarantees of free speech outweigh a property owner's right to exclude.
Many states differ on whether their individual state constitutions give more weight to free speech in privately owned places than the rights conferred by the U.S. Constitution, as defined by the U.S. Supreme Court. Still, the state of Florida has never directly addressed the issue of whether the Florida Constitution gives more protection to free speech in privately owned places than the U.S. Constitution does. Thus Kevin Wood's situation is potentially groundbreaking: If federal First Amendment free speech rights do not overpower the Panama City Mall owner's right to exclude Kevin Wood, do the free speech rights under the differently worded Florida Constitution guarantee Kevin Wood a right to solicit signatures for his candidacy for political office in a privately-owned shopping mall?
The answer to that question is not certain. The attorney for Kevin Wood, Pat J. Fauceux, argues that the Panama City Mall is more like a "company town" and "business district" than it is like the mall in Lloyd. Thus, he concludes that the First Amendment of the U.S. Constitution allows Wood to advertize for political office in the Panama City Mall, even if the mall owners object. Fauceux alternatively argues that under the Florida Constitution Wood's free speech rights should outweigh the Panama City Mall owner's right to exclude Wood.
This second argument is partially based on the syllogism: 1) The California Constitution grants more free speech rights on privately owned property, like the malls in Pruneyard and Lloyd, than the federal constitution; 2)The Panama City Mall's character is no more private that the malls in the cases of Lloyd and Pruneyard; 3)The Florida Constitution is almost identical to the California Constitution in free speech guarantees; 4) Therefore, since the California Constitution would grant Wood the right to solicit petitions for political office in the Panama City Mall, it only makes sense that the Florida Constitution should too. If the court accepts this argument, the state of Florida will fall in line with those states which grant greater free speech rights to its citizens than the federal constitution.
