by Ron Davis
Hawaii is the most recent state to grant owners of privately held shopping centers the right to expel an unwanted solicitor from their properties.
In a case before the Hawaii Supreme Court, the justices had to decide if free-speech rights allow solicitors to protest at will on private property. That case involved Ala Moana shopping center in Honolulu, and the solicitor had positioned herself at the facility so she could present her message to the shopping center’s patrons.
The woman’s intention was to appeal to shoppers at a children’s toy store–Kay-Bee Toys–that is a tenant of the shopping center. She stood on a sidewalk in front of the store holding a sign that read, “Stop selling war hero toys to kids. Adults who plant mines, drop bombs, fire missiles, kill kids. Boycott Kay-Bee till military figures are sold only to adults!” She also distributed pamphlets to shoppers.
A security guard at the shopping center responded to her actions by informing her that she could neither picket nor distribute literature on Ala Moana’s premises because it is a private facility. She ignored the security guard’s warning, and he called the local police.
Officers from the Honolulu Police Department later also warned the woman that she was trespassing on private property. And when, after repeated appeals, she still refused to leave the shopping center, police officers arrested her.
At her trial, the woman argued that she had never seen any signs at the shopping center prohibiting her from distributing leaflets or picketing. She also pointed out that she was not creating a disturbance while on the property and that she considered the common areas of the shopping center to be “free-speech and free-assembly turf,” not unlike that of a public place in any city or town.
A judge rejected her arguments, however, and found her guilty of criminal trespass. She appealed that decision.
The Hawaii Supreme Court, in upholding the decision of the lower court, explained, “The protestor’s proposition that property is, without more, somehow converted from private to public for free-speech purposes because it is openly accessible to the public is simply wrong as a matter of law.... Hawaii’s Constitution, like the First Amendment of the U. S. Constitution, mandates state action of some kind as a precondition to its application, and there has been no state action abridging her right of free speech.” (State v. Viglielmo, 95 P. 3d 952)
Decision: September 2004
Published: October 2004