Jacobs v. Major

SHIRLEY S. ABRAHAMSON, J.

{concurring in part, dissenting in part). The primary issue in this case is whether the exclusion from a "public forum” of members of the public who wish to engage in political speech violates the right to speak freely guaranteed by the Wisconsin Constitution, where a nongovernmental entity owns and operates the "public forum” and imposes the exclusion. I conclude that the Wisconsin Constitution protects political speech reasonably exercised in a nongovernmental "public forum” from unreasonable interference by the owners.¹

Free Speech and the Public Forum. As Judge Bruce Beilfuss (former Chief Justice of this court), writing for the court of appeals in this case, pointed out, "[F]ree expression is one of society’s most crucial civil liberties.” Jacobs v. Major, 132 Wis. 2d 82, 91, 390 N.W.2d 86 (Ct. App. 1986). The right to speak freely is essential to nourish democracy. "Those who won our independence believed that... the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” Whitney v. California, 274 U.S. 357, 375 (1927) (Brandéis, J., concurring).

The right to speak freely would mean little if it were a right to speak only where one could not be heard. For that reason, the United States Supreme Court has held that the federal Constitution protects to some degree the access of speakers to public areas where the community gathers, areas known in first amendment parlance as "public forums.” Although public forum is difficult to define, public streets, parks, or village squares — places which by long tradition or by government fiat have been devoted to assembly and discussion — fall into this category. "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of privileges, immunities, rights and liberties of citizens.” Hague v. CIO, 307 U.S. 496, 515 (1939) (Roberts, J., concurring). The public forum is an inexpensive and accessible means of public communication.

Traditionally, the government provided the centers for community gatherings that constituted public forums. Increasingly, however, certain nongovernmental entities have taken over the role the government formerly played by providing areas that are used for public gatherings. The more than 25,000 shopping centers in the United States, for example, have been described as "new downtowns,” where people not only shop but also stroll, socialize and participate in community activities as they once did in downtown business districts.

The mall in this case, East Towne, is an example of this trend.² Envisioned as a "community center” ("a focal point for civic activities”) and advertised as such, the East Towne mall provides interior corridor space of about 83,000 square feet and accommodates an estimated 175,000 visitors per week. The mall is open to the public, and people need not have a commercial purpose to enter. The management permits a great deal of community activity in the mall — e.g., musical events, automobile shows, and public service events and exhibits — but prohibits, among other things, political or religious activities of any kind. The management’s prohibition on political expression in the mall extends even to the carrying of balloons with political messages written on them.

The management of the mall, then, exercises an enormous power when it denies political speakers access to such a center of community life, a power analogous to that of the government as provider of public forums.³

First Amendment. The first amendment to the federal Constitution (as made applicable to the states by the fourteenth amendment) provides, "Congress shall make no law ... abridging the freedom of speech.” The United States Supreme Court has said that prohibitions on political speech in nongovern-mentally-owned shopping malls do not violate the first amendment as applied to the states through the fourteenth amendment. The first amendment restrains only state action. Lloyd Corp v. Tanner, 407 U.S. 551 (1972).

Art. I, sec. 3, Wisconsin Constitution. This court has recognized that our state constitution may permit greater freedom of speech than the federal Constitution. See McCauley v. Tropic of Cancer, 20 Wis. 2d 134, 139, 121 N.W.2d 545 (1963). Our state constitutional convention considered a provision very similar to the first amendment, but rejected it as too indefinite.⁴ Instead, the people of the state of Wisconsin chose to frame the state constitutional right of free speech more broadly and more definitely than the first amendment. Judge Gartzke’s concurring opinion in the court of appeals, Jacobs v. Major, 132 Wis. 2d 82, 140-143, 390 N.W.2d 86 (1986), describes the history of art. I, sec. 3 in the constitutional convention.

Art. I, sec. 3 of the Wisconsin Constitution provides: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press — ” Art. I, sec. 3 of the constitution has two clauses. Broadly and affirmatively stated, the first clause confirms the centrality of freedom of expression in our constitutional scheme. More narrowly drawn and directed specifically at governmental interference with free speech, the second clause identifies the government as the gravest threat to free speech at the time the provision was drafted.

The constitutional text appears to provide an affirmative right to free speech valid by its own terms against all the world, not just the state. People going to the polls in 1848 or today to adopt the words "every person may freely speak, write and publish his sentiments on all subjects” would think naturally enough that the words protect each person’s right to speak freely against any true threat, regardless of whether the source of the threat was a governmental or nongovernmental entity.

Further evidence appears in the constitution that sec. 3 protects against nongovernmental action. The Preamble to the Wisconsin Constitution places securing the blessings of freedom first on the list of reasons for the establishment of the Wisconsin Constitution. The Declaration of Rights makes clear that one of the fundamental purposes of the establishment of government in Wisconsin was the protection of individual freedom.⁵ The Declaration of Rights then proceeds to enumerate many of the liberties, including freedom of expression, which the government was instituted to secure. A people who thought of government as necessary to protect freedom must have thought that there were persons or entities other than government that could threaten freedom.

Protection of speech against nongovernmental interference is consistent with the intentions of the framers and the electors adopting sec. 3. Judge Robert H. Bork, a distinguished proponent of the jurisprudence of original intent, has explained that, in order to be true to the original intent of the framers, the modern judge must apply the general principles on which the framers agreed to circumstances which the framers could not have dreamed of. "A judge who refuses to deal with unforeseen threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair, and reasonable meaning, fails in his judicial duty.” Bork, The Constitution, Original Intent, and Economic Rights, 23 San Diego L. Rev. 823, 827 (1986). The specific threats which the framers anticipated may provide some insight into how the framers might apply the constitutional value to circumstances they could not have anticipated. Bork, Foreward to McDowell, The Constitution and Contemporary Constitutional Theory, p. x (1985).⁶

This case illustrates Judge Bork’s point. The framers of the Wisconsin Constitution identified in art. I, sec. 3 both a general principle in the first clause (the right to speak freely) and a specific threat in the second (government interference with that right). In the context of this case, the nongovernmental entities who own and operate regional shopping centers which are promoted as, and function as, community centers are providing "public forums” of a sort previously provided by the government. By restraining political speech in these new "public forums” and asserting a right to control and orchestrate speech in these new centers of community life, these nongovernmental entities present a threat analogous to the specific threat identified by the framers of the Wisconsin Constitution. To be true to the intent of the framers, this court should declare that the constitution protects the individual’s right to political speech in "public forums” from interference by these nongovernmental entities.

All the evidence points toward the conclusion that the framers and electors intended the Wisconsin Constitution to protect political speech reasonably exercised from unreasonable interference by nongovernmental owners of a "public forum:” the broad and affirmative wording of art. I, sec. 3, the framers’ rejection of a provision clearly limiting protection of speech from governmental interference only, and the clear and unequivocal statements in the constitution that a fundamental purpose of government is the protection of freedom.

This conclusion does not mean that the defendants’ expressive rights are unlimited. They are not. The defendants’ rights to political speech are limited by the mall owners’ rights to use of their property. The mall owners have the right to adopt restrictions on expressive conduct on their property.⁷ The court of appeals majority opinion provides an example of one way of balancing the rights of free speech and property. The court of appeals precluded expression which was disruptive or threatening to the health or safety of the patrons or which interfered with the commercial purpose of the mall.

The Majority Opinion and art. 1\ sec. 3. Despite the differences in the texts of the state and federal constitutions and despite the state constitutional convention’s rejection of a provision that spoke only to prohibit governmental interference with speech, the majority concludes that art. I, sec. 3 is to be read like the first amendment and entails only a freedom from governmental interference with speech.

Instead of explaining why texts that are worded so differently should be interpreted similarly, the majority simply invokes the plain meaning rule. In other words, the majority is asserting that the plain meaning of the provision adopted by the convention is the same as the plain meaning of the provision rejected by the convention.

In addition, the majority’s interpretation renders the first clause surplusage. The majority asserts that the first qlause states the right and the second clause protects the right. Yet, the second clause standing alone — the substantial equivalent of which was rejected by the convention as too indefinite — completely states the right found by the majority: a protection against governmental interference with speech. The majority cannot explain what the first clause adds to the second clause. The majority’s invocation of the plain meaning rule strains credibility.

For no apparent reason, given that it found the provision to have plain meaning, the majority embarks on an extended discussion of the state action concept in regard to the entire Declaration of Rights. Of course, we are not asked to construe the entire Declaration of Rights in this case. Nevertheless, in dictum that dwarfs the rest of its opinion, the majority fabricates a presumption "that a specific provision in the Declaration is intended to protect persons only from state action unless strong evidence exists to the contrary." Opinion at 512.⁸

Ignoring the fact that a central objective of Wisconsin state government is the protection of individual rights, the majority narrows the scope of the entire Declaration of Rights through its categorical assertion that the rights declared therein are presumed to protect only against state action. The evidence the majority adduces to support this presumption consists largely of quotations from scholars and cases establishing the truism that the provisions of the Declaration of Rights restrain state action. I do not dispute this truism which the majority opinion takes pains to demonstrate. The issue in this case, however, is whether art. I, sec. 3 protects an individual’s freedom of expression from certain forms of nongovernmental interference as well as from governmental interference. The majority’s attempt to stretch its truism, so that the truism answers the issue in this case, results in a logical fallacy, i.e., the majority reasons that because the Declaration of Rights is presumed to protect against state action, the Declaration of Rights can be presumed not to protect against nongovernmental action that does not amount to state action.

The majority’s presumption is supported neither by the text of section 3 nor by traditional methods of interpretation. It also conflicts with other provisions of the constitution. Art. I, sec. 2, for instance, prohibits slavery, stating "there shall be neither slavery, nor involuntary servitude in this state....” This language, like that of sec. 3, is silent regarding its application to individuals or government. I do not think there is any dispute that sec. 2 applies to individuals, private entities and the state government. There is no principled way to distinguish between secs. 2 and 3 with respect to the state action limitation.

Even if I were to accept the majority’s conclusion that the Declaration of Rights restrains only state action, I might be persuaded that the shopping mall in this case constitutes state action, for purposes of art. I, sec. 3. The contours of state action for purposes of the state constitution may differ from the state action concept developed under the federal Constitution, which must address federalism issues. In this case the mall owners’ exclusion of political speech is arguably state action because the mall has the attributes of a "public forum.”

The Injunction and Damages. I would affirm the unanimous decision of the court of appeals regarding the injunction. Thus, to the extent that the majority opinion affirms the decision of the court of appeals, I agree with the decision of the majority. I do not, however, agree with the majority’s conclusion that the circuit court erred in limiting the injunctive relief and that the defendants are guilty of trespass.

Conclusion. Individual rights are not the brainchild of the judiciary. The framers of the Wisconsin Constitution chose to protect individual rights in the very first article of the Wisconsin Constitution. The framers twice in the Wisconsin Constitution indicated that the protection of individual rights was a fundamental purpose of government, and it was the framers who exhorted posterity to frequently recur to fundamental principles in order to preserve the blessings of a free government. The framers were deeply committed to the protection of individual rights, as they were committed to establish a government which would function in the best interests of the people.

In discharging the difficult task of interpreting and applying the principles broadly articulated by the framers in the Declaration of Rights, this court should not categorically presume that the framers intended individual rights to be read more narrowly than they were written. The personal preference of the judge should no more be used to read rights out of the constitution than it should be used to read rights into the constitution.

For the reasons set forth, I do not join the majority opinion. I am authorized to state that CHIEF JUSTICE NATHAN S. HEFFERNAN and JUSTICE WILLIAM A. BABLITCH join this opinion.

1 As we explain later, nongovernmental owners of "public forums” have the right to restrict expressive conduct on their property. Indeed, government has the right to place certain restrictions on expressive conduct on property it owns. For a discussion of the permissible and impermissible restrictions by government, see, e.g., Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); Board of Airport Comm’r v. Jews for Jesus (No. 86-104), — U.S. — (June 15, 1987).

2 The other mall in this case, West Towne, is essentially the same as East Towne, although it is somewhat smaller.

3 The "public forum” concept used here in connection with nongovernmental entities under the state constitutional provision draws on but is not necessarily the same as the "public forum” concept under the federal Constitution.

4 The proposal, which was rejected, read "The legislature shall make no law abridging the freedom of speech...” Quoted in Jacobs v. Major, 132 Wis. 2d at 142 (Gartzke, J., concurring).

5 Section 1 of the Wisconsin Declaration of Rights states, paraphrasing the United States Declaration of Independence (not the federal constitution): "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.”

6 "A major problem with the idea of original intention is that the Framers articulated their principles in light of the world they knew, a world very different in important respects from that in which judges must decide cases today. This means that a constitutional right, generally stated, was illustrated for them by a set of circumstances or dangers that time has changed. It is the modern judge's task to determine whether that right applies to circumstances that did not even exist in contemplation when the Framers acted. He cannot confine himself to the specifics they had in mind, for to do so would make rights dwindle when, for example, technology changed. In order to protect the freedoms the Framers envisaged, the judge must discern a principle in the applications the Framers thought of and then apply that principle to circumstances they did not foresee. This, surely, is what Lincoln meant when he said, as McDowell paraphrases him, that 'The constitutional jurisprudence of judicial statesmanship is not limited to the meaning of the principles of the Constitution but extends to the objects those principles are, in time, intended to achieve.' " Bork, Foreword to McDowell, The Constitution and Contemporary Constitutional Theory, p. x (1985).

One of the most difficult problems in interpreting a constitutional provision is stating a constitutional value or principle at a level of generality that is neither more nor less than the words of the text will fairly bear.

7 See note 1 supra.

8 I conclude, although the majority does not, that the very words of art. I, sec. 3 granting every person the right to speak freely are strong evidence to rebut any such presumption.