ESSAY- Rights fight: Who wins in speech v. property?

"Congress shall make no law ... abridging the freedom of speech..."

"No person shall ... be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation."

We all know– or should know– these sentences. They are cornerstones of our American liberties. Along with the other fundamental human rights masterfully articulated by James Madison and the architects of the Constitution, they protect us from autocratic governmental action.

When there's a contest between two citizens– or two or more basic civil rights– issues can become blurred. But only if we lose the constitutional focus.

For a year now, our community has seen a contest between two citizens– Richard Collins, an individual, and a group of citizens, the owners/operators of Shoppers' World Shopping Center.

Ostensibly, this is a contest between two basic civil rights: free speech and private property. Both Collins and the Shoppers' World group have grievances. Collins alleges censorship; Shoppers' World claims trespass.

There are few if any people– certainly not Chuck Lebo and the principals of Shoppers' World– who would deny the right of Rich Collins or any other citizen or group to express their political views and speech on the "village green" or in the "town square."

As Americans we celebrate this basic right. A dozen– even 1,000– people have the same right. In the latter case, the local government is required to accommodate peaceful assembly and speech while requiring that the organizers assure the health and safety of participants and onlookers.

Many of us would be outraged if any government sought to shut down such demonstrations of free expression, and the courts would agree with us. Our history– our heritage– is to protect the free speech of even such abhorrent groups as Nazis, white supremacists, and people who want to burn the flag and destroy the Constitution. We are strong enough as a nation to allow, protect, and defend public speech-– free from the tyranny of governmental repression.

Now shift over to the property of a private shopping center with the single commercial purpose to accommodate its tenants and their customers. Some citizens and legal activists attempt to make the case that a shopping center open to the general public for commercial purposes has become a modern American equivalent of "the village green."

But-– and as most courts agree– private property is not the village green.

A wise law professor once said, "A horse is a horse and a cow is a cow. Even if you hang a sign on a horse saying, ‘This is a cow,' it is still a horse. And even if the state legislature passes a law saying that a horse is a cow, it remains a horse."

Consider the case of someone having a garage sale on a lovely spring Saturday morning in central Virginia. Of course the public is invited, one and all, to peruse the "stuff" for sale.  

Now suppose a political candidate sees the crowd, walks into the yard, and begins handing out his brochures. The owner might respectfully ask him to leave. But if he insists upon continuing to express his views, persists, and refuses to leave, is that an example of free speech? Or is it trespass? 

Almost all of us would see it as trespass. 

Fundamentally, private commercial property presents a similar situation. And the Supreme Courts of the Commonwealth of Virginia and of the United States agree.

Private property does not "lose its private character merely because the public is generally invited to use it for designated purposes ..." the U.S. Supreme Court has ruled. "The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center ..." Pruneyard Shopping Center v. Robins, 447 US 74, 87–88 (1980).

 What would happen if private commercial property were determined to be the legal equivalent of the "village green"? How would the private owners accommodate a group of citizens respectfully demanding to make their political statements?  

Would they be guided by rules similar to those that apply to the government? Would there be any reasonable limits on the group's size, the timing of the demonstration, the level of noise, the traffic, the health and safety of the group– and the center's tenants, employees, customers? 

And who would pay for all this? Is it reasonable to assume that customers seeing the crowd would probably drive on to the next center? Should the private property owner be compensated for the cost and/or loss?

Back to the garage sale. Whose rights are violated?  Whose are protected?

Rich Collins' participation in our political process is to be applauded. But it's important to remember that his right to free speech has been not denied. Only the location– on someone else's private property– is denied. 

He and the rest of us can share our views in lots of places. We have, in fact, many "village greens"– public places, public gatherings, media, and even private property– where political speech and expression are permitted.

Sometimes the protection of civil liberties can take strange forms. Sometimes it can get a little messy. And sometimes the real civil libertarians in a contest aren't the obvious choices.  

It is unfortunate that Chuck Lebo, a decent, dedicated citizen, has been portrayed as a villain for merely defending his constitutionally protected right to limit access to private property.

Defining private property as anything other than private property sets our society on a dangerous course against liberty itself– even in the context of advocating freedom to express political speech.

Let's hope that Virginia's courts stand by their long tradition of respecting and protecting the rights of both free speech and private property.

Rich Collins


Albemarle Circuit Court judge Paul Peatross ruled on October 10 that Collins' allegedly sincere, though mistaken, belief that he was allowed to exercise his First Amendment rights and pass out campaign literature at the privately owned Shopper's World– even after he was repeatedly asked to leave on May 7, 2005– was enough to "negate criminal intent." Thus Peatross overruled the lower-court trespassing conviction.

Separately, Peatross also dismissed Collins' civil suit against the shopping center. However, with the help of the ACLU and the Rutherford Institute, Collins is pressing an appeal, hoping to make Virginia the seventh state– along with California, Colorado, Massachusetts, New Jersey, Oregon, and Washington– to consider shopping centers to be "village squares" for purposes of politicking.–Hook staff