City of West Des Moines v. Engler
641 N.W.2d 803
Iowa
2002
Check Treatment
CARTER, Justice.

Defendants, Paul Engler and Deborah Helt, have been granted discretionary review of their simple-misdemeanor convictions for trespassing in violation of West Des Mоines, Iowa Ordinance 5 — 2—2—3(b) (1998). They contend that their actions were protected as a right of free speech guaranteed by article I, section 7 of the Iоwa Constitution. After reviewing the record and considering the arguments presented, we conclude that the distribution of leaflets in a privately owned shopping mall is nоt an activity protected as a right of free speech. Consequently, we affirm the judgment of the district court.

On December 24, 1998, defendants gathered with others near the entrance to the J.C. Penney store in the Valley West Mall and attempted to distribute leaflets to mall patrons. The leaflets were entitled “Sweatshop Products Sold at J.C. Penney, Van Heusen Grinch Steals Christmas in Guatemala” and contained therein were statements urging mall patrons to contact the Phillips-Van Heusen Corporation and the J.C. Penney store manager.

Mall safety officers requested that the defendants cease the distribution of the leaflets in the mall and move their prоtest to the public street surrounding the mall. Despite the request, defendants continued to distribute the leaflets. West Des Moines police officers made a second request that defendants cease distribution of the leaflets, but that request was also refused. Defendants were then arrested on charges of criminal trespass. The charges were submitted at a bench trial on stipulated facts. A district associate judge found defendants guilty of trespassing in violation of the local ordinanсe. Defendants next appealed to a district judge, who upheld their convictions.

Defendants assert that their convictions violate the right of free speech guaranteed to them by article I, section 7 of the Iowa Constitution. Their appeal is predicated entirely on state constitutional ‍​‌‌‌​​​‌​​‌​​​​‌‌​‌‌‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‍law. Undoubtedly, that path has been taken because the United States Supreme Court has rejected similar free-speech claims based on the First Amendment to the federal constitution. See Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131, 143 (1972). A substantial impediment also confronts defendants’ free-speech claims under the state constitution as a result of our decision in State v. Lacey, 465 N.W.2d 537, 540 (Iowa 1991).

In Lacey union members were convicted of criminal trespass for distributing on the premises of a restaurant handbills that urged potential customers to boycott that establishment. In rejecting the defеndants’ claims that their activities were protected by the free-speech guarantees of the federal and Iowa constitutions, we discussed in detail the Lloyd decision of the *805 Suрreme Court, which foreclosed their federal free-speech claims and then declared “[w]e conclude that defendants’ free-speech argument must fail under both the federal and Iowa Constitutions.” Lacey, 465 N.W.2d at 540.

Defendants urge that our Lacey decision is not conclusive of their free-speech rights under the Iowa Constitution because the argument ‍​‌‌‌​​​‌​​‌​​​​‌‌​‌‌‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‍they arе making is premised on specific constitutional language not considered by this court in the Lacey opinion. Defendants note that the material portions of articlе I, section 7 of the Iowa Constitution provide:

Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall bе passed to restrain or abridge the liberty of speech, or of the press. [The balance of this clause pertains to the elements of actions for libel.]

Defendants argue that the first sentence in section 7 operates entirely independently from the second sentence and that the free-speech guarantee provided in the Iowa Constitution is not limited to abuses by state action. An argument similar to the one that defendants are making was presented to the Minnesota Supreme Court in State v. Wicklund, 589 N.W.2d 793 (Minn.1999), in a ease involving protests against the fur trade at the Mall of America. The language of the Minnesota Constitution guaranteeing freedom оf speech was nearly identical with that of the Iowa Constitution, ‍​‌‌‌​​​‌​​‌​​​​‌‌​‌‌‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‍which we have quoted. The Minnesota Supreme Court concluded that the constitutional languagе at issue here is, like its federal First Amendment counterpart, designed to protect against state action.

The Minnesota court in Wicklund noted that the language of the free-speeсh guarantees contained in the Iowa and Minnesota constitutions are not unique. At that time, the bills of rights of thirty-three other states contained language nearly identical to the Iowa and Minnesota free-speech guarantees. Wicklund, 589 N.W.2d at 799. A substantial majority of the courts in those states have interpreted this free-speech lаnguage as being coextensive with that of the First Amendment to the federal constitution. See Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz. 371, 767 P.2d 719, 723 (1988); Citizens for Ethical Gov’t, Inc. v. Gwinnett Place Assocs., 260 Ga. 245, 392 S.E.2d 8, 9-10 (1990); People v. DiGuida, 152 Ill.2d 104, 178 Ill.Dec. 80, 604 N.E.2d 336, 344-45 (1992); Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337, 347 (1985); Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131, 138 (2001); S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243, 251 (Nev.2001); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 498 N.Y.S.2d 99, 488 N.E.2d 1211, 1215 (1985); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708, 712 (1981); Eastwood Mall, Inc. v. Slanco, 68 Ohio St.3d 221, 626 N.E.2d 59, 62 (1994); Stranahan v. Fred Meyer, Inc., 331 Or. 38, 11 P.3d 228, 243 (2000); W. Pennsylvania Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331, 1339 (1986); Charleston Joint Venture v. McPherson, 308 S.C. 145, 417 S.E.2d 544, 548 (1992); Southcenter Joint Venture v. Nat'l Democratic Policy Comm., 113 Wash.2d 413, 780 P.2d 1282, 1291 (1989); Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832, 836-37 (1987).

Defendants urgе that the courts which have reached these decisions have not been faithful to the language ‍​‌‌‌​​​‌​​‌​​​​‌‌​‌‌‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‍of the constitutional provisions that were under consideration. They argue that the language of *806 article I, section 7 of the Iowa Constitution and of many other state constitutions create both a limitation against statе action (the second sentence) and an affirmative protection against the abridgement of freedom of speech by other potential sources of interference (the first sentence). In rejecting a similar argument, the Michigan court in Woodland stated:

The firmly established doctrine that constitutionally guaranteed individual rights are drаwn to restrict government conduct and to provide protection from governmental infringement and excesses is not unique to the federal Bill of Rights. This has generally been the view with respect to state bills of rights as well.

Woodland, 378 N.W.2d at 344 (citing Rottschaefer, American Constitutional Law § 305 (1939); McClain, Constitutional Law § 205 (2d ed.1910); Cooley, Constitutional Law 219 (3d ed. 1898)).

The court in Woodland went on to opine that

[i]f all civil rights, in the sense of rights which a person may assert against his fellow citizens, were to be incorporated in thе constitution, the distinction between the constitution as fundamental law — defining the frame of government and the relation of the government to the citizen — and the genеral laws of the state — defining rights and obligations arising out private relationships — would be lost.

378 N.W.2d at 346. We agree with the position of the Michigan court and do not believe this interpretation does violence to the language of article ‍​‌‌‌​​​‌​​‌​​​​‌‌​‌‌‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‍I, section 7. Our interpretation is consistent with the language of the first two sentences of that сlause if they are read in pari materia.

Defendants’ principal policy argument as to why we should not continue to apply our Lacey decision is that places where pеople assemble today are different from the places where they assembled in times past. Defendants urge that, because people no longеr gather in large numbers on public streets and sidewalks, those locations are no longer suitable places for the distribution of political leaflets. To be whеre the crowd is distributors of political leaflets must go to the malls. Assuming the accuracy of the premise on which this argument is based, it does not convert privately owned and operated business locations into public places. For that to occur, there must be, as the Minnesota court has recognized, “either a symbiоtic relationship or a sufficiently close nexus between the government and the private entity so that the ‘power, property and prestige’ of the state has been in fact placed behind the challenged conduct.” Wicklund, 589 N.W.2d at 802.

The Supreme Court recognized in Lloyd:

[Property [does not] lose its private character merely because the public is gеnerally invited to use it for designated purposes. Few would argue that a freestanding store, with abutting parking space for customers assumes significant public attributes mеrely because the public is invited to shop there. Nor is size alone the controlling factor. The essentially private character of a store and its рrivately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.

407 U.S. at 569, 92 S.Ct. at 2229, 33 L.Ed.2d at 143. We agree.

We have considered all issues presented and conclude that the judgment of the district court must be affirmed.

AFFIRMED.