O'Brien v. United States, 80-1385.
| Decision Date | 06 April 1982 |
| Docket Number | No. 80-1385.,80-1385. |
| Citation | 444 A.2d 946 |
| Parties | Harold O'BRIEN, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Earl Glass, Alexandria, for appellant.
Lisa J. Stark, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty. at the time the brief was filed, John A. Terry and David E. Sellinger, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before NEWMAN, Chief Judge, and KERN and BELSON, Associate Judges.
This is an appeal of a conviction for unlawful entry, D.C.Code 1981, § 22-3102, based on appellant's refusal to desist from handing out commercial leaflets on Washington Metropolitan Area Transit Authority (WMATA) property. Appellant challenges his conviction on the ground that because the applicable WMATA regulations impermissibly restrict the exercise of his First Amendment rights, the application of the unlawful entry statute is constitutionally precluded. We affirm his conviction.
On the morning of March 28, 1980, appellant was distributing commercial handbills at the Judiciary Square Metro station. Standing on WMATA property at the top and just to the right of the only upward bound escalator at the Fourth and D Streets exit from the station, appellant attempted to hand leaflets1 to persons alighting from the escalator.
Sometime between approximately 7:15 and 7:45 a. m., appellant was advised by an officer of the Metro Transit Police that Metro regulations prohibit the distribution of leaflets at that location. The officer explained to appellant O'Brien that he was free to continue distribution on the public sidewalk a few feet away. Appellant refused to cease his activities and advised the officer to either arrest him or leave him alone.
Thereafter, appellant was again advised by another Metro Transit Police officer that he could not distribute leaflets at the top of the escalator. When appellant refused to leave, she arrested him.
The trial judge, after hearing post-trial arguments on whether appellant's activity was protected by the First Amendment, found him guilty of unlawful entry.
The District of Columbia unlawful entry statute provides for the punishment of anyone who remains on either private or public property without lawful authority and who refuses to leave on the demand of the person lawfully in charge. As applied to private property, the two components of the statute merge. The mere demand of the person lawfully in charge to leave necessarily deprives the other party of any lawful authority to remain on the premises. Feldt v. Marriott Corp., D.C.App., 322 A.2d 913, 915-16 (1974). In contrast, as to public property, the statute requires: (1) that a person lawfully in charge of the premises expressly order the party to leave, and (2) that, in addition to and independent of the evictor's wishes, there exists some additional specific factor establishing the party's lack of a legal right to remain. Carson v. United States, D.C.App., 419 A.2d 996, 998 (1980); Leiss v. United States, D.C.App., 364 A.2d 803 (1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977).
Appellant's activities took place on WMATA property, which all parties concede should be considered public property for purposes of applying the statute. Thus, we must consider whether, in addition to the officers' order to leave, there existed a specific factor establishing appellant's lack of a legal right to remain next to the escalator.
Two different WMATA regulations prohibited appellant's activities and may serve as additional factors. Regulation 5 of the Washington Metropolitan Area Transit Authority Rules and Regulations of Free Speech provides:
All free speech activities are to take place at a distance greater than 15 feet from any escalator, stairwell, faregates, kiosk, or fare card machine. On street level areas, free speech activities are to take place in an area greater than 15 feet from any escalator, bus stop or shelter. WMATA regulations also proscribe all commercial activity within the transit system except for strictly controlled billboarding in free standing areas and public telephones. Appellant does not dispute that he was in violation of both the regulation prohibiting activities within 15 feet of an escalator and the regulation prohibiting commercial activities.
Because we think that appellant's violation of the 15 foot regulation supports the lawfulness of his conviction, we do not reach the issue of the validity of the total ban on commercial speech as applied to the appellant.
The First Amendment does not guarantee appellant the right to communicate his views at all times and places or in any manner he wishes. The government may regulate speech and communicative conduct on public property if it does so in a narrow and reasonably necessary manner which serves significant governmental interests, see Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and is content-neutral and non-discriminatory, see United States Postal Service v. Council of Greenburgh Civil Associations, 453 U.S. 114, 101 S.Ct. 2676, 2686, 69 L.Ed.2d 517 (1981); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972). Factors to be weighed in determining the reasonableness of any restrictions infringing on free expression include "the nature of the particular public property, the weight of the governmental interests involved, the availability of alternative avenues of expression, and the extent to which the regulation unnecessarily interferes with First Amendment rights." Leiss v. United States, supra at 808. Additionally, the fact that this case involves commercial speech means that appellant's activity is afforded significantly less protection than if he were engaged in non-commercial speech. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978).
Washington Metropolitan Area Transit Authority's 15 foot regulation, which appellant concedes he violated, is a valid time, place, and manner restriction. The rule applies evenhandedly to all those who wish to distribute written materials and is content neutral. The regulation also serves a significant governmental interest by ensuring an orderly flow of pedestrian traffic on and off the escalator and, in turn, avoiding congestion at the escalator's entrance or exit which could cause injury. Compare Heffron v. International Society for Krishna Consciousness, Inc., supra (...
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