State v. Schmid

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtHANDLER; Although our own courts have seldom been invited or required to view the New Jersey Constitution as a separate basis for delineating the scope of individual speech and assembly freedoms, the philosophy recognizing the importance of such righ
Citation84 N.J. 535,423 A.2d 615
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Chris SCHMID, Defendant-Appellant.
Decision Date25 November 1980

Page 535

84 N.J. 535
423 A.2d 615
STATE of New Jersey, Plaintiff-Respondent,
v.
Chris SCHMID, Defendant-Appellant.
Supreme Court of New Jersey.
Argued Feb. 4, 1980.
Decided Nov. 25, 1980.

[423 A.2d 616]

Page 538

Jerrold Kamensky, Trenton, and Sanford Levinson, a member of the California Bar, for defendant-appellant (Jerrold Kamensky, attorney).

Florence V. Hughes, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; John DeCicco, Deputy Atty. Gen., of counsel).

Nicholas de B. Katzenbach Armonk, N. Y., for intervenor Princeton University (Thomas H. Wright, Jr., Princeton, attorney; Laura C. Ford, Princeton, of counsel and on the brief).

Michael F. Spicer and Frances Goldmark, Trenton, submitted a brief on behalf of amicus curiae Ass'n of Independent Colleges and Universities in New Jersey (Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

While distributing political literature on the campus of Princeton University, defendant Chris Schmid, a member of the United States Labor Party, was arrested and charged by the University with trespass upon private property. He was subsequently convicted under the State's penal trespass statute. On this appeal he challenges the conviction on the grounds that it stems from a violation of his federal and state constitutional rights to freedom of speech and assembly.

I

On April 5, 1978, Chris Schmid1 was distributing and selling political materials on the main campus of Princeton University, a private, non-profit institution of higher education located in the Borough of Princeton, New Jersey. These materials dealt

Page 539

with the City of Newark mayoral campaign and with the United States Labor Party in general. Schmid was not a student at [423 A.2d 617] Princeton University nor was the Labor Party a university-affiliated or campus-based organization. On certain previous occasions members of the Labor Party had unsuccessfully sought to obtain University permission to distribute and sell political materials on campus. On this particular occasion in April 1978, however, no such permission was either sought or received.

Under the University regulations then in effect, permission was a prerequisite for the on-campus distribution of materials by off-campus organizations. No such permission was required, however, for the same activity by a university-affiliated organization or by Princeton students. The regulatory language pertaining to off-campus organizations stated in part:

Demonstrations and the distribution of leaflets, statements, or petitions ... are permitted on the campus unless, or until, they disrupt regular essential operations of the University or significantly infringe on the rights of others. On the same grounds, the campus is open to speakers whom students, faculty, or staff wish to hear, and to recruiters for agencies and organizations in whom students or faculty have an interest. (University Regulations as passed by the Council of the Princeton University Community, May 1975, as amended 1976.)

These regulations further provided that no solicitation of either sales or charitable contributions was to be permitted on campus without the express authorization of the appropriate University officials. Moreover, door-to-door political or charitable solicitation was generally prohibited. Ibid. The University revised these regulations in 1979.2

[423 A.2d 618]

Page 541

Schmid stipulated that he had been aware in April 1978 that the existing University policy was against allowing "persons not connected with the University to enter campus uninvited and without sponsorship for the purpose of soliciting support or contributions." He had, in fact, previously been told on February 15, 1978 that his presence and activity on campus without permission were "forbidden" and that he "was subject to arrest for trespassing if he entered on campus to solicit again (without University permission)."

Schmid was arrested for trespass on University property on the day in question by a member of the Princeton University Security Department and charged as a disorderly person under N.J.S.A. 2A:170-31.3 He was convicted of trespass in Princeton Borough Municipal Court on October 20, 1978 and fined $15 plus $10 costs. On February 20, 1979, following a trial de novo in Superior Court, Law Division, pursuant to R. 3:23-8, Schmid was again found guilty of trespass and the same monetary penalty was reimposed. While defendant's appeal was pending in the Appellate Division, this Court directly certified the case under R. 2:12-1. 81 N.J. 344, 407 A.2d 1218 (1979). At the Court's invitation, Princeton University intervened in this appeal. The Association of Independent Colleges and Universities in New Jersey also filed an amicus curiae brief with this Court.

Page 542

Defendant contends on this appeal that his trespass conviction offends both the federal and the State Constitutions. He specifically asserts that his conduct-distributing political literature on the main campus of Princeton University-constituted an exercise of his freedoms of speech and assembly, an exercise protected both by the First Amendment to the United States Constitution and by Article I, paragraphs 6 and 18 of the New Jersey Constitution; he maintains that the University was thus constitutionally obligated to permit this activity on its campus. In opposition, the State and the University contend that defendant's conduct encroached unlawfully upon legitimate and protectable private property rights. They argue that the University as a private entity had not undertaken state governmental action and had not invited or made a public use of its property sufficient to subject it to the strictures of the speech and assembly guarantees under either the federal or the State constitution. For these reasons, they urge that the University, in prosecuting Schmid for trespass upon private property, did not violate his individual constitutional rights.

We now address the respective federal and State constitutional issues framed by this appeal.

II

Defendant asserts initially that his conviction in this case violated his rights under the First Amendment to the United States Constitution. The First Amendment [423 A.2d 619] was designed by its framers to foster unfettered discussion and free dissemination of opinion dealing with matters of public interest and governmental affairs. Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484, 488 (1966); State v. Miller, 83 N.J. 402, 412, 416 A.2d 821 (1980). It embraces the freedom to distribute information and materials to all citizens, a freedom "clearly vital to the preservation of a free society." Martin v. Struthers, 319 U.S. 141, 146-147, 63 S.Ct. 862, 864-865, 87 L.Ed. 1313, 1319 (1943); see Lovell v. Griffin, 303 U.S. 444, 450-451, 58 S.Ct. 666, 668-669, 82 L.Ed. 949, 953 (1938). The guarantees of the First Amendment are effectuated against potential state interference

Page 543

through the Fourteenth Amendment by limiting the extent to which states can restrict individuals in the exercise of rights of speech and assembly. See, e. g., Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155, 164 (1939). The First Amendment, however, does not similarly protect rights of speech and assembly against interference or impairment by private individuals. The Amendment imposes no limitations upon "the owner of private property used nondiscriminatorily for private purposes only," even though such use may trench upon the speech and assembly activities of other persons. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 131, 142 (1972).

It is clear that public colleges and universities, as instrumentalities of state government, are not beyond the reach of the First Amendment. Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266, 279 (1972). A public college or university, created or controlled by the state itself, is an arm of state government and, thus, by definition, implicates state action. Powe v. Miles, 407 F.2d 73, 82 (2 Cir. 1968); see American Future Systems, Inc. v. Pennsylvania State Univ., 618 F.2d 252, 255 (3 Cir. 1980).

A private college or university, however, stands upon a different footing in relationship to the state. Such an institution is not the creature or instrument of state government. Even though such an institution may conduct itself identically to its state-operated counterparts and, in terms of educational purposes and activities, may be virtually indistinguishable from a public institution, see McKay, "The Student As Private Citizen," 45 Denver L.J. 558, 560 (1968), a private college or university does not thereby either operate under or exercise the authority of state government. Hence, the state nexus requirement that triggers the application of the First Amendment is not readily met in the case of a private educational institution. See, e. g., Grafton v. Brooklyn Law School, 478 F.2d 1137, 1143 (2 Cir. 1973); Blackburn v. Fisk Univ., 443 F.2d 121, 123 (6 Cir. 1971); see generally Annot., "Action of Private Institution of Higher Education as Constituting State Action, or Action Under Color

Page 544

of Law, for Purposes of Fourteenth Amendment and 42 U.S.C.A. § 1983," 37 A.L.R.Fed. 601 (1978).

Notwithstanding the primary thrust of the First Amendment against state governmental interference with expressional freedoms, the guarantees of this Amendment may under appropriate conditions be invoked against nongovernmental bodies. In particular settings, private entities, including educational institutions, may so impact upon the public or share enough of the essential features of governmental bodies as to be engaged functionally in "state action" for First Amendment purposes. The more focused inquiry therefore must be turned to those circumstances that can subject an entity of...

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132 practice notes
  • LA Alliance for Survival v. City of LA, No. S073451.
    • United States
    • United States State Supreme Court (California)
    • March 2, 2000
    ...302 Or. 510, 732 P.2d 9, 11; Alderwood Assoc. v. Wash. Envir. Council (1981) 96 Wash.2d 230, 635 P.2d 108, 115-116; State v. Schmid (1980) 84 N.J. 535, 423 A.2d 615, 626-627; Village of South Holland v. Stein (1940) 373 Ill. 472, 26 N.E.2d 868, 871.)93 Cal.Rptr.2d 10 This court, and the Cal......
  • Republican Party of Texas v. Dietz, No. 96-0555
    • United States
    • Supreme Court of Texas
    • February 28, 1997
    ...Cal.Rptr. 854, 592 P.2d 341, 346-48 (1979), aff'd on other grounds, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); State v. Schmid, 84 N.J. 535, 423 A.2d 615, 626-30 (1980), cert. dismissed, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); New Jersey Coalition Against War in the Mid......
  • Callen v. Sherman's, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • February 10, 1983
    ...362 A.2d 1304 (Law Div.1976). An evolving Page 123 concept, state action is susceptible only to a fluid definition. See State v. Schmid, 84 N.J. 535, 552, 423 A.2d 615 (discussing state action in the context of first amendment principles as applied to owners of private property). The most r......
  • State v. Gilmore
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 8, 1985
    ...(1982); State v. Hunt, 91 N.J. 338, 359, 450 A.2d 952 (1982); State v. Alston, 88 N.J. 211, 225, 440 A.2d 1311 (1981); State v. Schmid, 84 N.J. 535, 553-560, 423 A.2d 615 (1980); State v. Johnson, 68 N.J. 349, 353-354, 346 A.2d 66 (1975). Distinguished jurists and scholars have encouraged s......
  • Request a trial to view additional results
132 cases
  • LA Alliance for Survival v. City of LA, No. S073451.
    • United States
    • United States State Supreme Court (California)
    • March 2, 2000
    ...302 Or. 510, 732 P.2d 9, 11; Alderwood Assoc. v. Wash. Envir. Council (1981) 96 Wash.2d 230, 635 P.2d 108, 115-116; State v. Schmid (1980) 84 N.J. 535, 423 A.2d 615, 626-627; Village of South Holland v. Stein (1940) 373 Ill. 472, 26 N.E.2d 868, 871.)93 Cal.Rptr.2d 10 This court, and the Cal......
  • Republican Party of Texas v. Dietz, No. 96-0555
    • United States
    • Supreme Court of Texas
    • February 28, 1997
    ...Cal.Rptr. 854, 592 P.2d 341, 346-48 (1979), aff'd on other grounds, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); State v. Schmid, 84 N.J. 535, 423 A.2d 615, 626-30 (1980), cert. dismissed, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); New Jersey Coalition Against War in the Mid......
  • Callen v. Sherman's, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • February 10, 1983
    ...362 A.2d 1304 (Law Div.1976). An evolving Page 123 concept, state action is susceptible only to a fluid definition. See State v. Schmid, 84 N.J. 535, 552, 423 A.2d 615 (discussing state action in the context of first amendment principles as applied to owners of private property). The most r......
  • State v. Gilmore
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 8, 1985
    ...(1982); State v. Hunt, 91 N.J. 338, 359, 450 A.2d 952 (1982); State v. Alston, 88 N.J. 211, 225, 440 A.2d 1311 (1981); State v. Schmid, 84 N.J. 535, 553-560, 423 A.2d 615 (1980); State v. Johnson, 68 N.J. 349, 353-354, 346 A.2d 66 (1975). Distinguished jurists and scholars have encouraged s......
  • Request a trial to view additional results

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