Stahl v. State, s. M-80-326
| Decision Date | 22 June 1983 |
| Docket Number | M-80-377 and M-80-328,Nos. M-80-326,s. M-80-326 |
| Citation | 665 P.2d 839 |
| Parties | 9 Media L. Rep. 1945 Ronald Earl STAHL, William A. Collard, and Michael D. Kelly, Vicki Jean Monks, Ben Bernstein, Mark Raymond Emerson, David P. McDaniel, Eli W. Nixon and Steve Wolfson, Appellants, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellants are nine newspersons convicted in a non-jury trial of Trespass after Being Forbidden, in violation of 21 O.S.1971, § 1835. Each was fined $25.00.
The pivotal issue in this appeal is whether the First Amendment shields newspersons from state criminal prosecution in their news gathering function. We hold that it does not.
Black Fox Station is a 2,206 acre tract of land in Rogers County, Oklahoma, owned by the Public Service Company of Oklahoma (PSO), an Oklahoma corporation. PSO and two rural electric cooperatives, Associated Electric Cooperative, Inc. (Associated) and Western Farmers Electric Cooperative (Western), agreed to develop nuclear power generating facilities on the site. Some initial excavation and construction work was commenced under a limited work authorization issued by the Nuclear Regulatory Commission.
On June 2, 1979, members of the Sunbelt Alliance, a group whose goal it was to display their opposition to the proposed nuclear facility, occupied the grounds at Black Fox. The appellant newspersons crossed the fence with the protestors, despite PSO's previously announced intention to have such persons arrested, and despite signs posted on the fence and loudspeaker warnings. All 339 demonstrators and the nine appellants were arrested and booked by the Rogers County sheriff.
It is argued that appellants lacked the requisite criminal intent since they entered the land only to gather news, not to violate the rights of the landowners or engage in other unlawful behavior. It is also argued that appellants must be shown to have actually caused significant damage to a real property interest, or a breach of the peace to be guilty of the offense of trespass.
Title 21 O.S.1981, § 1835(a) provides:
Whoever shall willfully or maliciously enter the garden, yard, or enclosed field of another after being expressly forbidden to do so by the owner or occupant thereof shall be deemed guilty of trespass and upon conviction thereof shall be fined in any sum not to exceed Twenty-five Dollars ($25.00); provided, that anyone who willfully or maliciously enters any such garden, yard, or field, and therein commits or attempts to commit waste, theft, or damage shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or by confinement in the county jail for not less than thirty (30) days nor more than six (6) months, or both such fine and imprisonment.
Regarding the requisite mens rea, the word "willfully" is defined as follows:
The term "willfully" when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.
Title 21 O.S.1981, § 92. It is thus manifest that appellants need not have intended to violate any laws or injure the landowner in order to have committed trespass. Moreover, it is apparent that actual damage is not an element of the offense under the first part of § 1835(a). Trespass resulting in waste, theft or damage is treated separately in the proviso, and is subject to a greater range of punishment.
Appellants contend that these convictions are in violation of the First and Fourteenth Amendments to the United States Constitution. To sustain such a claim, a showing of government action, state or federal, is necessary.
We do not agree with our dissenting colleague that the validity of these convictions under the Oklahoma Constitution is properly before this Court. Any such claim has been waived in the briefs. Only one of the nine appellants makes any contention in this regard, and that by the obscure statement that the convictions violate the First Amendment "and the cognate provisions of the Oklahoma Constitution". Reply Brief of Appellant Monks, p. 33. Appellants' statement of the issue and the authority relied upon are grounded solely on the First Amendment.
However, the dissent does not differentiate under the facts of this case the protections provided by the Oklahoma Constitution from those provided by the First Amendment. Rather, the rights guarded are treated as co-extensive, with First Amendment caselaw controlling. Thus, the difference in results is not due to analysis under one constitutional provision instead of the other.
The trial court found that a sufficiently close nexus existed between the actions of PSO and the state and federal governments to fairly treat the actions of PSO as the actions of government itself. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The trial court further found that PSO's partners in the project, Associated and Western, were instrumentalities of the federal government, and that PSO acted on behalf of the partners. See, Alabama Power Company v. Alabama Electric Cooperative, Inc., 394 F.2d 672 (5th Cir.1978), cert. den., 393 U.S. 1000, 89 S.Ct. 488, 21 L.Ed.2d 465, (rural electric cooperatives are federal instrumentalities under the anti-trust laws). But see, City of Paris, Kentucky v. Federal Power Commission, 399 F.2d 983 (D.C.Cir.1968) ().
The State does not challenge these findings. It is unnecessary for us to determine whether state action is present in each of these forms since the constitutional claim is unavailing on its merits. Appellants urge that they have been denied their constitutional right to gather the news. They argue that they had a constitutional right to cross the fence and accompany the protestors in order to adequately cover the event absent a sufficient countervailing state interest.
On June 2, 1979, the grounds of Black Fox were closed to both press and public, except for a designated public viewing area (PVA) near the center of the site. PSO's general policy was that persons desiring to visit the site must enter at one of the gates. The visitor could then proceed directly to the PVA, or request permission to visit other portions of the site. Such permission normally involved an escort for the visitor while on the grounds. Those violating the policy by entering the property through the fence were subject to arrest.
The policy was based on the need to avoid harm to visitors due to ditches and holes on the property and the roads. There was also the danger posed by heavy equipment utilized in construction activity on the site. An additional factor leading to this policy was the need to avoid vandalism to the site and to the heavy equipment kept therein.
Although there is evidence that the overall PSO press arrangements for the June event were based in part on a desire to minimize the effectiveness of the demonstration these newspersons were arrested for crossing the fence and entering the grounds in violation of a policy supported by valid considerations. Governmental entities are empowered to regulate property under their control in order to preserve the property for the use to which it is lawfully dedicated. Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976); Adderly v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). The basic function of the Black Fox Station was to house nuclear power generating facilities. In order to efficaciously administer the property, PSO needed to regulate the entrance of visitors to the facility.
The First Amendment does not shield newspersons from liability for torts and crimes committed in the course of news-gathering. See Galella v. Onassis, 487 F.2d 986 (2nd Cir.1973); Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.1971); Anderson v. WROC-TV, 109 Misc.2d 904, 441 N.Y.S.2d 220 (1981); Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (1980). In Le Mistral, Inc. v. Columbia Broadcasting, 61 A.D.2d 491, 402 N.Y.S.2d 815, 817 (1978), the court reviewed the applicable law:
In Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir.1971), it was observed that Similarly, the Second Circuit Court of Appeals in Galella v. Onassis, 487 F.2d 986, 995-996, stated:
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