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Free Speech or Trespass?
by Ron Davis

The courts of Texas have taken a controversial stand in upholding the rights of privately owned shopping centers to regulate solicitation on center properties.

In the lawsuit that led to the court’s stand, a solicitor of signatures for a presidential write-in candidate sued an El Paso shopping center following his arrest there for trespassing.

The shopping center, Sunland Park Mall, is privately owned and has a policy that prohibits partisan political activities on the property. For example, Sunland Park refused an application by the El Paso Jaycees to solicit signatures for a bond issue because center officials did not want to give the appearance of “taking a side.” On the other hand, Sunland Park granted an application to set up early voting booths in its common area because that activity was not partisan and because the voters might stay to shop after voting.

The person charged with violating the Sunland Park policy was arrested after security officers warned him to cease his solicitation. The charge against him was criminal trespass.

Under Texas law, a person commits criminal trespass if he enters or remains on the property of another without effective consent and he had notice that the entry was forbidden (or received notice to leave but failed to do so).

The solicitor in this case argued, however, that the criminal trespass law violates the First Amendment to the U.S. Constitution. Specifically, he asserted that he was entitled to exercise his right to free speech at Sunland Park Mall because of its “functional equivalent of a town square.”

He also pointed out that the Texas Constitution guarantees that “every person shall be at liberty to speak, write or publish his opinions on any subject; and no law shall ever be passed curtailing the liberty of speech or of the press.”

A Texas court nevertheless upheld the right of a privately owned shopping center to regulate the activities of solicitors on center property.

On appeal, a Texas appellate court agreed with the lower court, explaining, “The [solicitor’s] defense in this case does not articulate how or why the language and history of the Texas Constitution demonstrate an intent to protect speech on private property. Moreover, the Texas Supreme Court has held that state action is required before a person may maintain a claim for a violation of free-speech rights. There is no evidence to show that the operations of Sunland Park Mall could be fairly attributed to the government.” (Cross v. State of Texas, Memorandum Opinion 08-03-00283-CR)

Decision: July 2004 Published: September 2004



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