State v. Wicklund

• Decision Date: 07 April 1998
• Docket Number: No. C7-97-1381,C7-97-1381
• Citation: 576 N.W.2d 753
• Parties: STATE of Minnesota, Appellant, v. Freeman Algot WICKLUND, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 753

576 N.W.2d 753

STATE of Minnesota, Appellant, v. Freeman Algot WICKLUND, et al., Respondents.

No. C7-97-1381.

Court of Appeals of Minnesota.

April 7, 1998.

Review Granted July 17, 1998.

Syllabus by the Court

1. Article I, section 3, the free speech provision of the Minnesota Constitution, protects expressive conduct only against infringement by "state action."

2. Public funding by itself does not satisfy the "state action" requirement.

3. The free speech protection of article I, section 3, of the Minnesota Constitution does not apply to a privately-owned shopping center such as the Mall of America, although developed in part with public financing.

4. The Mall of America, even if considered a "public forum" for purposes of article I, section 3, of the Minnesota Constitution, would be entitled to impose reasonable time, place, and manner restrictions on expressive conduct.

Hubert H. Humphrey III, Attorney General, St. Paul; and Sandra Henkels Johnson, Bloomington City Attorney, Bloomington, for appellant.

Larry B. Leventhal, Michael C. Hager, Larry Leventhal & Associates, Minneapolis, for respondents.

John M. Sheran, Jeffrey A. Eyres, Susan M. Humiston, Leonard, Street and Deinard, P.A., Minneapolis, for amicus curiae Mall of America Company.

Randall D.B. Tigue, Minneapolis, for amicus curiae Minnesota Civil Liberties Union.

Carla J. Heyl, St. Paul, for amicus curiae League of Minnesota Cities.

Charles F. Webber, Faegre & Benson LLP, Minneapolis; and Edward J. Sack, New York City, of counsel for amicus curiae International Council of Shopping Centers, Inc.

Carla J. Pedersen, Richard L. Evans, McGrann Shea Franzen Carnival Straughn & Lamb, Minneapolis, for amicus curiae Greater Minneapolis Building Owners & Managers Association and Building Owners and Managers Association International.

Considered and decided by HUSPENI, P.J., and RANDALL and MANSUR, ^* JJ.

OPINION

MARTIN J. MANSUR, Judge.

This appeal is from a pretrial order denying respondents' motion to dismiss but ruling in respondents' favor on the legal issue of whether the Mall of America is a "public forum" for purposes of the free speech provision of the Minnesota Constitution. Respondents are charged with misdemeanor trespassing. Minn.Stat. § 609.605, subd. 1 (1996). We reverse.

FACTS

Respondents Freeman Wicklund, Althea Schaffer, Peter Eckholdt, and Alissa Eggert are charged with entering the Mall of America on May 19, 1996, as part of a group of about 10 people protesting on behalf of animal rights. They allegedly stood in the courtyard in front of Macy's department store, carrying signs and passing out leaflets directed at Macy's sale of fur coats. They allegedly refused the request of Mall of America security personnel to leave the area because they were in violation of the Mall's rules regarding unauthorized distribution of literature and picketing. The group was advised that there were public areas available for protest on public sidewalks outside the Mall, and some agreed to leave voluntarily, but respondents refused and were arrested by Bloomington police. Respondents were charged with misdemeanor trespassing.

Respondents moved to dismiss the charges on grounds that the Bloomington trespassing ordinance was being unconstitutionally applied to them, and that First Amendment activities were protected in the Mall of America. After the state filed a response to the motion, the trial court issued an order soliciting briefing on the issue of whether the state constitutional protection for free speech applied to respondents' activities at the Mall of America. The court also posed additional factual questions. The parties filed additional memoranda, and the trial court granted both the Minnesota Civil Liberties Union (MCLU) and the Mall of America leave to participate as amicus curiae, and they filed amicus memoranda.

At an evidentiary hearing on the motion to dismiss, the parties presented a stipulation of facts and a list of exhibits. Testimony was presented concerning the financing of the Mall of America, the Mall's relationship with the Bloomington Port Authority and the City of Bloomington, including the Bloomington police department, the general phenomenon of enclosed shopping malls, and the details of the May 19, 1996, demonstration at which respondents were arrested.

The trial court issued an order denying the motion to dismiss, but agreeing with respondents' argument that the Mall of America is a "public forum" for purposes of the free speech provision of the Minnesota Constitution. The trial court concluded that the free speech provision of the state constitution should be construed more expansively than its federal counterpart, that given the substantial public subsidy involved in its construction, the Mall of America is not "private" in any meaningful sense, that the Mall was "born of a union with government," and that the Mall could impose only reasonable time, place and manner restrictions on the exercise of free speech. Although the court agreed with respondents' free speech argument, it denied their motion to dismiss, finding that respondents did not show that they had tried to get the Mall's permission for their demonstration or that such a request would have been futile.

ISSUE

Does the free speech provision of the Minnesota Constitution apply to respondents' expressive conduct at the Mall of America?

ANALYSIS

This court generally reviews a pretrial order appealed by the state under the clearly erroneous standard. See, e.g., State v. Jones, 518 N.W.2d 67, 69 (Minn.App.1994) (in pretrial appeal, state must show clearly and unequivocally that district court erred and, unless reversed, error will have critical impact on outcome of trial), review denied (Minn. July 27, 1994). The issue presented here, however, is the proper construction of a state constitutional provision, a question of law that this court may review de novo. See generally State v. Stallman, 519 N.W.2d 903, 906 (Minn.App.1994) (constitutionality of statute is legal issue reviewed de novo by appellate court). Although respondents attempt to frame the issue before this court as a factual issue to which the clearly erroneous standard might apply, the trial court's order presents a legal ruling reviewable under a de novo standard of review.

The United States Supreme Court has held that the free speech guarantee of the federal Bill of Rights does not extend to expressive conduct that occurs within the confines of a privately-owned shopping center. See Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 131 (1972). ¹ Therefore, respondents' activity in leafleting at the Mall of America against Macy's department store is protected only if the free speech guarantee in article I, section 3, of the state constitution extends a broader protection than the First Amendment of the federal Bill of Rights.

The United States Supreme Court's decision in Lloyd Corp. not to extend First Amendment protections to privately-owned shopping centers does not prevent a state from extending the free speech protections of its own constitution more expansively to protect expressive conduct in such locations. PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). A number of state courts have done so. E.g. New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 650 A.2d 757 (1994); Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979). We conclude, however, that the current state of the law in Minnesota and the weight of authority in other jurisdictions do not support such an extension.

Article I, section 3, of the Minnesota Constitution provides as follows:

The Liberty of the press shall forever remain inviolate, and all persons may freely speak, write and publish their sentiments on all subjects being responsible for the abuse of such rights.

As the trial court noted, this provision is worded differently than the federal Bill of Rights, which provides that "Congress shall make no law * * * abridging the freedom of speech or the press * * * *." U.S. Const. amend. I. It is axiomatic that the Minnesota Constitution may be construed so as to offer greater protection for individual rights than the U.S. Supreme Court has afforded under the federal constitution. E.g. State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985). But it is a significant undertaking for a state court to hold that the state constitution affords broader protections than the federal constitution, and it is not sufficient, to reject a U.S. Supreme Court opinion, that one prefers the opposite result. Women of State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 30 (Minn.1995).

The free speech provision in article I, section 3, of our state constitution expresses the right of free speech in positive terms, extending a freedom of speech to "all persons," while the First Amendment expresses the same guarantee in negative terms, as a restriction on the power of Congress to make laws. But, our state constitution's first amendment language is not unique. There are 33 states with virtually identical free speech provisions, stated in positive terms contrasting with the negative phrasing of the First Amendment. Cf. Note, Private Abridgement of Speech and the State Constitutions, 90 Yale L.J. 165, 180 n. 79 (1980) (counting 43 states with similarly-worded state constitutional free speech clauses).

Our supreme court has held that the free speech provision of the state constitution does not extend any broader protection to speech than is provided in the federal Bill of Rights. See, e.g., State v. Davidson, 481 N.W.2d 51, 57 (Minn.1992) (citing State v. Century Camera, Inc., 309 N.W.2d 735, 738 n. 6 (Minn.1981)). This court is not only bound by those decisions, we also find them particularly persuasive in this case.

The trial court's order discusses extensively the history of ...