WNPJ founding member Bonnie Block sends this statement, made to Judge Koval of the Madison Municipal court, at her trial for "unlawful trespassing" as a participant in a die-in at Madison's East Town Mall in November 2007. In it, she explores the legal issues involved when a group engages in free speech while on private property.
This is the fifth time I have come before you as a result of an act of nonviolent resistance to the war in Iraq. I consider it somewhat akin to an annual check-up to make sure that my rights and responsibilities as a citizen are still healthy.
The sad part is that each time I’ve been arrested for taking a strong public stance calling others to join me in opposition to this war and military occupation, the costs have gone even higher. Hundreds more U.S. troops have died, thousands more have been wounded, tens of thousands more Iraqis have become casualties and billions more dollars have been wasted in this illegal and immoral war.
The need, right, and duty to oppose this war is abundantly clear, so I won’t take up your time. (And attached to my statement is a copy of a letter published in The Capital Times on November 7, 2007 that does detail the reasons for our action.)
Rather I want to raise another issue. I believe that the unlawful trespass charge in the facts before you is an unconstitutional limitation of our rights to free speech. It is a sham to call a shopping mall “private property” Jacobs v. Major, 193 Wisc 2nd 492, 407 NW 2nd 832 (WI 1987) notwithstanding.* New Jersey, California and four states have ruled differently by finding that malls are the present day equivalent of the town square and a place that one can respectfully and nonviolently express one’s dissent.
I would agree that property rights need to be balanced with free speech rights but that doesn’t happen here in Wisconsin. Because of the unfortunate ruling in Jacobs v. Major, mall personnel are able to decide who gets to exercise free speech and who doesn’t. They spend a lot of money to advertise and attract the public to the mall, they allow certain groups in to sing, display, or demonstrate, but call the police because they disagree with anti-war protests. That shouldn’t happen in a democracy.
To top it off Madison’s unlawful trespass ordinance also multiplies the forfeiture for trespass by almost four times over an equivalent “trespass” on a public sidewalk or street. Our group which is part of the National Campaign of Nonviolent Resistance, has done a vigil, read names of the dead and done a “die-in” multiple times in front of Senator Kohl’s office on both the sidewalk and in the street. The forfeiture for such an action has been $109 or its equivalent in community service. The identical action in the food court of a mall results in a forfeiture of $424 as stated on the ticket we received on November 2, 2007. Why is that? Is public property worth only one quarter of the so-called “private property” of a mall?
In short, I ask that you dismiss this charge because it results in an unconstitutional limitation of a citizen’s right to free speech in a public place. Or else at a minimum, I ask that you not penalize us disproportionately by valuing mall property more highly than
public property. The forfeiture for identical acts should be the same whether the action in question took place on a public sidewalk or a public walkway inside a mall. And finally if you do nevertheless find us guilty and impose any forfeiture, I ask that it be paid with community service. Thank you.
*[NOTE Regarding the Major v. Jacobs case which Judge Koval referred to as the controlling law he was required to follow in cases like ours.
The facts in Major v Jacobs were that an anti-nuclear group staged a die-in at East Towne and leafletted at West Towne Mall in Madison to dramatize what would happen if nuclear weapons were used. The malls obtained an injunction forbidding the group from entering the mall. The group violated the injunction, was found guilty of trespass and the case was appealed.
At issue in the Wisconsin Supreme Court was “whether Article I, sec. 3 of the Wisconsin Constitution requires the owners of private property to permit non-consensual use of their facilities by others for freedom of speech purposes.” Article I, Section 3. says: 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.
The majority of the Supreme Court found that Section 3 did not protect the defendants' conduct on plaintiffs' property since state action was not involved and therefore there were no free speech rights on private property. As mentioned in my statement, NJ and CA and several other states have ruled differently in balancing free speech rights and private property rights.
There is very interesting language in the dissenting opinions in Jacobs v. Major. Justice Abrahamson wrote:
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.
And Justice Bablitz:
I write to emphasize that fifty years of experience taught a lesson that was not ignored by the framers of the Wisconsin Constitution: that government was not the only entity that can substantially infringe on individual liberties. Accumulations of economic power by nongovernmental entities can, by the use of that power, pose as great a threat to individual liberty as can government.
However, the only way to overturn the current law which holds malls to be private property where citizens have no rights of free speech, is to take a case back to the Supreme Court and convince the majority of the court to rule otherwise. The other alternative is to get the State Legislature (or City Council) to pass a law specifically allowing for free speech in malls.
Anybody up for such a legal challenge or legislative campaign? Contact me at bblock@charter.net
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