Commonwealth v. Tate

LARSEN, Justice,

dissenting.

I dissent. In Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), the United States Supreme Court recognized a constitutional right, under the First Amendment of the United States Constitution, to engage in expressive activity on private property under circumstances analogous to those presented in this case. Four years later, in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), that Court found it necessary to substantially repudiate the rationale of Logan Valley. Two years after Lloyd, in Hudgens v. N. L. R. B., 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the United States Supreme Court expressly overruled Logan Valley, observing that the rationale “did not survive the Court’s decision in the Lloyd case”, and that the United States Constitution would not provide protection “against a private corporation or person who seeks to abridge the free expression of others.” Id. at 518 and 513, 96 S.Ct. at 1035 and 1033. In my opinion, this Court now errs in not following the approach taken by the United States Supreme Court in interpreting the United States Constitution, and in embarking on the same line of reasoning with respect to the Pennsylvania Constitution which the United States Supreme Court adopted in similar circumstances, and then rejected only four years later.

Every citizen of this country and Commonwealth has a right to hold whatever political, religious, social and philosophical beliefs and viewpoints that he or she chooses, and should also be free to entertain similar-minded persons on their own private property and domain without interference from others. Muhlenberg College is a private corporation and, as such and like all other private citizens of this Commonwealth, should have the right to invite whom it wishes onto its own property and to exclude any other private persons from entering on that property. To carve out exceptions to this right and to engage in the majority’s “balancing” of constitutional interests vis-a-vis private citizens creates for property owners confusion and uncertainty in the law, and chills the exercise of property rights. The Lehigh-Pocono Committee of Concern (LEPCO) has the same rights as Muhlenberg College with respect to the use of their own property and also with respect to the use of public property, and those are the appropriate forums for the expression of LEPCO’s opinions, not on property belonging to another.

Accordingly, I would affirm the judgments of sentence.