for applying our constitution's rights of speech and assembly to property private in name but used in fact as a forum for public debate. In Tate, a private institution of higher learning sponsored a community anticrime symposium which included a speech by then FBI Director Clarence Kelley. The symposium was open to the public; in fact, the public was encouraged to attend. Appellants, the Lehigh-Pocono Committee of Concern (LEPOCO), sought to peacefully protest against Director Kelley because of his refusal to supply them with information they had requested under the Freedom of Information Act... and to protest generally against FBI policies. The College summarily denied LEPOCO's request for a permit; apparently no criteria for granting or denying permits existed. On the day of Director Kelley's speech, members of LEPOCO entered the campus and peacefully distributed leaflets near the auditorium. Twice college officials and the police asked them to leave; they refused. The protesters were arrested for defiant trespass, 18 Pa.C.S sec. 3503(b). We held that LEPOCO members had a right to speak freely without fear of criminal conviction under art. I, sec. 7 of the Pennsylvania Constitution, because the college had made itself into a public forum and 18 Pa.C.S.sec. 3503(c)(2) provided a defense to a charge to defiant trespass in those circumstances.

South Hills Village, on the other hand, has not made itself a public forum in this manner. Appellee has invited the public at large into the mall only for commercial purposes. By adhering to a strict no political solicitation policy, appellee has uniformly and generally prevented the mall from becoming a public forum. South Hills Village is operated as a market place for the exchange of goods and services but not as a market place for the exchange of ideas. Therefore, the Tate analysis does not support appellant's claim.

A shopping mall is not equivalent to a town. Though it duplicates the commercial function traditionally associated with a town's business district or marketplace, the similarity ends there. People do not live in shopping malls. Malls do not provide essential public services such as water, sewers, roads, sanitation or vital records, nor are they responsible for education, recreation or transportation. Thus, the Marsh analysis is not applicable to the instant case.

We are aware that the Supreme Court of California has held that the petition and free speech provisions of its constitution confer a positive right to solicit signatures for political purposes in a privately

owned shopping mall. Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979), aff'd. 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). Those provisions are substantially the same as our own. Although the facts of Pruneyard are almost identical to this case, the Pruneyard rationale is grounded in California law. The California Court, after generally observing that free speech and petition rights are very important in California, 153 Cal.Rptr. at 858-59, 592 P.2d at 345-46, pointed to provisions of the California Constitution similar to ours and held them more expansive than the First Amendment to the United States Constitution. Id. 153 Cal.Rptr. at 859, 592 P.2d at 346. We agree with the California Court that these rights are basic and important. We also believe the text of our constitution, like theirs, indicates a more expansive protection than the First Amendment. Indeed, we implicitly recognized that in Tate. However, we cannot agree with Pruneyard's holding that the state, as a matter of positive law, may constitutionally interfere with a private person who uniformly precludes political activities on his property.

The highest courts of other jurisdictions are divided on this issue. In a plurality decision, the Washington Supreme Court stated that the speech and petition provisions of the Washington Constitution were modeled on the California Constitution and entered an order consistent with Pruneyard. Alderwood Associates v. Washington Environmental Council, 96 Wash.2d 230, 635 P.2d 108 (1981).

The Supreme Judicial Court of Massachusetts has also held that its state constitution confers a right to solicit signatures in a shopping mall. Batchelder v. Allied Stores International, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983). It based its decision on the right to petition and seek office. The language of this section of the Massachusetts Constitution is substantially different from the language in Article I, Section 20 of the Pennsylvania Constitution. The court did not reach the free speech provision.

Unlike California, Massachusetts and Washington, other sister jurisdictions in addressing these situations have reached the result we do today. We believe that their position is more nearly correct. The Connecticut Supreme Court in Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984), held that the Connecticut Constitution did not confer a right to solicit signatures in a privately owned shopping mall. The court rejected the Pruneyard analysis and held that the history of the Connecticut Constitution shows that their Declaration of Rights is a restraint on the government and does not confer

positive rights. The court also refused to exercise the state's police power, in deference to the legislature.

In Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337 (1985), the Michigan Supreme Court also found no right to solicit signatures in a shopping mall under its constitution. The court held that the Michigan Constitution is a restraint on governmental interference with rights. It discussed and rejected both Pruneyard, supra, and Alderwood, supra, and refused to invade the legislature's domain by exercising the state's police powers.

The California Supreme Court in Pruneyard utilized that state's police power to regulate property in the public interest and held that appellants had a right to solicit signatures in a privately owned shopping center. 153 Cal.Rptr. at 860, 592 P.2d at 347. It analogized this exercise of police power in the name of free speech to regulation of private property to further other public interests such as zoning, public health and safety and environmental protection. Id., 153 Cal.Rptr. at 857-59, 592 P.2d at 344-46.

NIX, Chief Justice, concurring and dissenting.

The Opinion Announcing the Judgment of the Court persuasively argues that, unlike its federal counterpart, the Declaration of Rights contained in Article I of our Constitution "assumes their existence as inherent in a man's nature." At 1335. I join in the conclusion that "[t]hese rights are specifically reserved to the people; each inhabitant of the Commonwealth, ..." (emphasis added). At 1335. Thus, the limitation in federal constitutional decisions to matters involving "state action" is not applicable in an analysis where it is alleged that one of these rights conferred under our constitution has been violated. See Hartford Accident and Indemnity Co. v. Insurance Commissioner of Commonwealth, 505 Pa. 571, 585, 482 A.2d 542, 549 (1984). (Language of Pennsylvania Constitution, not "state action” test, controls its applicability.) To this extent, I am in complete agreement with the view expressed in the Opinion Announcing the Judgment of the Court.

My departure begins with the statement, “[t]he adjustment of these rights among private parties, however, is not necessarily a matter of constitutional

Discussion Notes

1. This decision refers to the earlier Pennsylvania case, Commonwealth v. Tate. Can the two decisions be reconciled?

dimensions." At 1335. When it is applied in this situation, where the issue requires a definition of the right in a given context, it is obviously a question of constitutional dimension. Once a constitutional right is recognized, any claim that its protection has been denied requires a determination of the breadth of that protection. The most frivolous claim of an illegal search, denial of free speech, deprivation of due process, etc., still requires decisions with constitutional implications.

This initial disagreement occasions my further departure from the suggested analysis employed by the plurality in adjusting these constitutional disputes between individuals. As recognized in Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), a balancing process is required which should attempt to maximize each side's enjoyment of the respective rights claimed. Such an accommodation requires careful analysis. An implied premise that private ownership must prevail is antithetical to the objective that should be achieved.

Private ownership is a generic term for many different relationships. For instance, it embraces residences, non-profit ventures, and purely commercial ventures; it also encompasses different levels of public involvement. In this instance we are faced with the type of private ownership which is comparable to the main commercial area in a given community, a place that has traditionally been an accepted forum for the appropriate expression and exchange of ideas, political and otherwise. The mere fact that it is privately owned should not be the controlling factor in the judgment to be made in this decision. Political expression, even though it may be unpopular at any given time, is certainly one of the rights that fall within the penumbra of rights articulated under our Declaration of Rights. When it is established that it is done in an unobtrusive and orderly fashion, without harassment to those who do not wish to engage in such an exchange, I do not find the basis for concluding that the mere fact that the area is privately owned would necessarily preclude the activity.

Accordingly, I believe that we should direct our trial courts to employ the balancing test in future cases such as these to attempt to accommodate the competing interests.

2. Once a state court recognizes rights to free speech on "private" property, what should be the nature and limits of these rights which go beyond federal constitutional doctrine? Read the next excerpt with this question in mind.

Sanford Levinson,

"Freedom of Speech and the Right of Access to Private Property under State Constitutional Law," Developments in State Constitutional Law ed. Bradley D. McGraw

St. Paul: West Publishing Co. 1985, pp. 59-63 1985 West Publishing Company. Reprinted with permission.

This point underscores the extent to which the access cases necessarily force one to confront some of the most fundamental problems (and dilemmas) in the entire area of civil liberties. Today, I think it is safe to say, no generally accepted comprehensive theory of freedom of speech exists. There are three primary candidates: One emphasizes the general public interest in a free marketplace of ideas, regardless of the topic. That is, information about drug prices is of equal weight to political information. A second focuses on so-called "freedom of expression," which can include behavior ranging from nude dancing to burning one's draft card. Finally, there is an approach based on the federal Constitution's own emphasis on safeguarding a "republican form of government," which offers special protection to political speech while being less concerned with intervening against legislative attempts to regulate speech unrelated to politics.

This is not the occasion for a full treatment of free-speech theory, but I should confess that my own commitment is more to the "republican form of government" approach than to its two competitors. In any case, though, it is extremely important that all of the litigated cases have involved claims involving political speech, and courts rightly should feel hesitant to extend the protections accorded political speakers to those whose speech is not connected in fairly direct ways with the process of self-governance. The easiest way of making this point is to suggest that the requirement of access by political speakers to Barton Springs Mall, in my own home city of Austin, Texas, does not in the least entail a right of persons to enter the Mall and pass out leaflets advertising the wares available at the Highland Mall. Whatever protection the federal and state constitutions extend to commercial speech surely does not extend this far.

It is also worth mentioning that not only shopping centers and private universities are implicated in any

doctrines of access to private property. Other candidates for access include privately owned "residential" or "retirement" communities, trailer parks, migrant labor camps, and nursing homes, all of which may make deliberate attempts to discourage any outsiders from entering their grounds. At least one New Jersey case50 involved a trespass conviction deriving from an attempt by a "planned retirement village" to bar unauthorized visitors from the community grounds.

The defendant was attempting to circulate a petition involving political issues in the local township where the retirement village was located, and the court invalidated the conviction. Although the court stated that it did "not wish to open wide the gates of Rossmoor and [thus] allow anyone to come in at anytime, for any purpose[,] [n]evertheless, this court feels compelled to hold ajar the gates of Rossmoor under the present circumstances. To hold otherwise would, in effect, create a political isolation booth. Here again it is certainly understandable that courts hesitate to grant a general right of access to the property even as they protect one especially important type of speech-that concerning politics and elections.

Let me extend this analysis in the area that I know best, both as a litigator and an academic-the right of access to private university campuses. I suspect, though, that what is true about private universities is by-and-large applicable to the other kinds of private property mentioned, especially residential villages. One characteristic common to both, for example, is that significant numbers of registered voters live on the premises. It is worth noting that this is not true of shopping centers; any rationale, though, for extending rights of access to shopping centers will almost certainly apply even more strongly to private universities or residential communities precisely because of the presence of these genuine inhabitants in the latter. Indeed, the numbers often are high enough that such voters can play a decisive role in municipal elections.

However important it may be, republican-formof-government rationale for access to otherwise private property has a limited scope. One might well prefer universities that open themselves, and their students, to the broadest range and experiences imaginable. Arguably such openness is required of state and other publicly-funded universities. There is no good argument, however, that any constitution, whether federal or state, requires private universities to incarnate this ideal. What Schmid won in the Princeton case is best defended not in the name of gen

BOState v. Kolcz, 114 N.J. Super. 408, 276 A.2d 595 (1971).

eral liberal ideals of free inquiry but in behalf of the much more limited, albeit absolutely vital, ideal of political self-governance. Let us see, therefore, what is not protected under such an ideal.

We have all witnessed over the past two decades the extension at the national level of First Amendment protection to such activities as commercial speech, at least soft-core sexual explicitness, and the use of "vulgar" or "offensive” language in speech directed at adults. It is not clear to me that these protections need be extended to Schmid's activities on Princeton's campus, since none speaks to the central value of republican governance.

Commercial speech, as already suggested, is the easiest example. That the state cannot prohibit a lawyer or druggist from advertising does not entail that she has a right to come onto private property and pass out leaflets indicating the current price of goods and services. Student-consumers may have an interest in learning such information, but the role of consumer does not rise to the same level as that of citizen. A university administration can decide that an academic atmosphere is best maintained by limiting the incursion of commerce.

Cultural expression, including alleged pornography, is a much harder issue. The republican-form-ofgovernment rationale implies the right of a pamphleteer, for example, to enter Notre Dame's campus and communicate with the registered voters who live there in order to seek signatures for or otherwise endorse a referendum that would, say, decriminalize homosexuality or other behaviors condemned by the Catholic Church. Once an issue enters the political process, I believe, a university cannot prevent communication about it to its students, so long as the methods of communications do not otherwise disrupt university operations. Mere opposition to the ideas cannot count as disruption, since the inhabitants of the campus have a joint identity both as students and as voters. Universities can completely regulate what is communicated to students in classrooms, but they ought not be able to isolate the voters from contact with other citizens of the American community who wish to discuss candidates or issues of direct political import.

Does this mean, however, that a person has a right to enter the campus and pass out leaflets endorsing homosexuality itself or containing vivid narrative descriptions of the pleasures attached to uninhibited sexual expression? Even though such leaflets clearly would be protected by the First Amendment if handed out in traditional "public forums" like streets and parks, I am inclined to think that they need not be protected on private property. Although sexual identity and expression are surely important, they are analytically separable from the

overall process of democratic self-governance. The religious and associational rights of Notre Dame, Brigham Young, or similar institutions are entitled to prevail against the free speech claims of the entrant. Thus I think that a private university could ban the sale on its campus of Playboy (let alone Hustler), though it is a much closer question if it could prevent the distribution of Human Events or the Monthly Review (let alone The Public Interest or The Nation).

Indeed, I also am willing to grant that a Catholic school need show no hospitality to someone like Grace Marsh, a Jehovah's Witness determined to demonstrate the evil of the Church's doctrines. A private university organized around a religious creed need feel under no state-imposed duty to engage in self-criticism by welcoming onto its campus those who would attack its central premises. Justice Black never really explained how Marsh's specific aims were related to the general social good of creating an informed electorate. In terms of modern doctrine, her rights on public property are best explained as flowing from the general duty of content neutrality whereby the state cannot open its own forums to speech in general and then select out religious speech for worse treatment.

There is no good reason to interpret state constitutional guarantees of freedom of speech to require access to private property for those who wish to propagate religious views; it is hard to imagine why a State has any interest at all in maximizing the confrontation by its citizens with the full range of ideas about religion. States do, however, have a very strong, indeed a "compelling" interest, in protecting against the use of private power in ways foreseeably detrimental to effective self-governance, and it is enough for states to protect that interest.

Somewhat more difficult are issues presented by the regulation of "vulgar" speech. Must Princeton or Notre Dame allow Schmid to come on campus while wearing a jacket or buttons containing "four-letter words"? There is at least one strain of republicangovernance theory, especially that associated with the philosopher Alexander Meiklejohn, that emphasizes the rationalism and decorum of political debate. Under this model, political discussions ought to be conducted with emphasis on the reasoned elaboration of one's viewpoint, with "emotion" and epithet kept to a minimum. This strain sees little worth in protecting the public use of vulgarity.

I have little hesitation in rejecting legally imposed decorum so far as the "public forum" is concerned; I think that Cohen was rightly decided. Universities present more complex problems, however. To the extent that universities stand for the general value of structured discourse, they necessarily oppose the reduction of complex issues to single

phrase labels. Insofar as one generally permits even the state to engage in time, place, and manner regulation of public speech, perhaps one wants to acknowledge as well a university's entitlement to insist that political argument be conducted in a manner befitting the general commitment of the university to reason.

The very difficulty of these, and other issues, may speak in favor of state-by-state solutions to these conundrums, as opposed to national decision-making by the United States Supreme Court. Obviously I am delighted that the New Jersey Supreme Court ruled in

Discussion Notes

1. Professor Levinson, author of the foregoing excerpt, successfully represented the individual claiming state constitutional free speech rights in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100 (1982).

favor of Schmid in the Princeton case, just as I am pleased by the trend of the decisions discussed in this essay. Nonetheless, there nay be some merit in Connecticut's having gone the other way. The premise that States can be laboratories for social experimentation is not merely a cliche. My own hope is that all states will ultimately find it desirable to accept the rights articulated by California, New Jersey, Pennsylvania, and Massachusetts, but the decision-making process can only be aided by the evidence provided by the diversity of experience in the various states.

People v. Zelinski

155 Cal.Rptr. 575, 594 P.2d 1000 (1979)

MANUEL, Justice.

Virginia Zelinski was charged with unlawful possession of a controlled substance, heroin (Health & Saf.Code, sec. 11350). A motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. She entered a plea of guilty and appeals. (Pen. Code, sec. 1538.5, subd. (m).) We reverse.

On March 21, 1976, Bruce Moore, a store detective employed by Zody's Department Store, observed defendant place a blouse into her purse. Moore alerted Ann O'Connor, another Zody detective, and the two thereafter observed defendant select a pair of sandals, which she put on her feet, and a hat, which she put on her head. Defendant also took a straw bag into which she placed her purse. Defendant then selected and paid for a pair of blue shoes and left the store.

Detectives Moore and O'Connor stopped defendant outside the store. Moore placed defendant under arrest for violation of Penal Code section 484 (theft) and asked her to accompany him and detective O'Connor into the store. Defendant was taken by O'Connor to the security office where Pat Forrest, another female store detective, conducted a routine "cursory search in case of weapons" on the person of defendant.

Moore testified that he reentered the security office when the search of defendant's person was completed, opened defendant's purse to retrieve the

blouse taken from Zody's, and removed the blouse and a pill vial that lay on top of the blouse. Moore examined the vial, removed a balloon from the bottle, examined the fine powdery substance contained in the balloon, and set the vial and balloon on the security office desk to await the police who had been called.

Detective O'Connor, who testified to the search of defendant's person by Forrest, was initially confused as to whether the pill vial containing the balloon had been taken from the defendant's purse or from her brassiere. On cross-examination, O'Connor was certain that she saw Forrest taking it from defendant's brassiere. According to O'Connor, the pill bottle was placed on the security office desk where detective Moore shortly thereafter opened it and examined the powdery substance in the balloon. Later the police took custody of the vial and defendant was thereafter charged with unlawful possession of heroin.

Defendant's appeal involves two questions-(1) whether the store detectives Moore, O'Connor and Forrest exceeded the permissible scope of search incident to the arrest, and (2) if they did, whether the evidence thus obtained should be excluded as violative of defendant's rights under federal or state Constitutions. We have concluded that the narcotics evidence was obtained by unlawful search and that the constitutional prohibition against unreasonable search and seizure affords protection against the unlawful intrusive conduct of these private security personnel.

Store detectives and security guards are retained primarily to protect their employer's interest in property. They have no more powers to enforce the law