Richard E. JACOBS, David H. Jacobs, R.F. Coffin, The Northwestern Mutual Life Insurance Company, J & C Associates, Co-Partners, using the name of Madison Joint Venture, Plaintiffs-Appellants and Cross-Respondents, v. Robert W. MAJOR and Nu Parable, an unincorporated association, Defendants-Respondents and Cross-Appellants.
No. 85-0341
Court of Appeals
Argued December 17, 1985.—Decided May 15, 1986.
390 N.W.2d 86
Petition to review granted.
For the defendants-respondents and cross-appellants there were briefs by Jeff Scott Olson and Julian & Olson, S.C. of Madison, and oral argument by Jeff Scott Olson.
Before Gartzke, P.J., Dykman, J. and Bruce F. Beilfuss, Reserve Judge.
BEILFUSS, J. Richard E. Jacobs, David H. Jacobs, R. F. Coffin, the Northwestern Mutual Life Insurance Company, J & C Associates, doing business as Madison Joint Venture, a partnership owning and operating two regional shopping malls, appeal from a judgment permanently enjoining Robert Major and Nu Parable, an unincorporated, anti-nuclear dance troupe, from performing on partnership properties. Major and Nu Parable cross-appeal. The issues on appeal are: whether the case implicates a constitutional question; whether the recognition of a right of free speech on private property under Wisconsin‘s constitution would deny appellants their rights under the first, fifth and fourteenth amendments to the United States Constitution; whether the trial court erred by limiting injunctive relief to the prohibition of only certain expressive activities; and whether the trial court abused its discretion in declining to hold Samuel Day, Jr. in contempt for violating a pretrial temporary injunction. The issue on cross-appeal is whether the Wisconsin Constitution secures the right to free speech against private infringements.
FACTS
Appellants are the owners of two large shopping malls in Madison, known as the East Towne Shopping Center and the West Towne Shopping Center. Respondent Robert Major was a graduate student at the University of Wisconsin at the time of trial. Respondent Nu Parable is an unincorporated dance troupe organized by Major and others to publicly perform, as a polit-
East Towne and West Towne malls are large, enclosed shopping centers containing 95 and 66 tenant stores respectively. Each of the malls also adjoins and is attached to a number of independent, “anchor” department stores. Appellants’ rental income from the mall is generated largely through the combination of a base rent and a percentage of each tenant‘s sales.
Interior corridors, owned by appellants, connect the leased stores and the independent department stores. These corridors are climate controlled and contain numerous fountains, plantings of tropical foliage and carpeted seating areas. The costs of mall maintenance and private security service are borne by the tenants.
The tenants of each mall have formed merchants’ associations which, among other things, schedule activities for the interior corridors designed to attract shoppers. These activities are subject to the approval of appellants’ mall managers. Since the opening of the malls in the early 1970‘s, appellants have maintained a strict policy prohibiting political or religious activities, leafletting, handbilling or soliciting of shoppers on the premises.
Major formed Nu Parable in early 1984 as a low budget performance group using only dance and costume to symbolically convey its message about nuclear war. The costume was a red shirt bearing a black and yellow fallout shelter symbol. The dance involved 10 to 12 dancers, lasted about five minutes and concluded with a “die-in” in which bystanders were invited to join the dancers in lying motionless on the floor for several
From the beginning, Major envisioned performances at shopping malls. However, Nu Parable‘s first public dances took place at a U.S. post office, at a public park in Madison, and in the State Capitol rotunda.
In late March, 1984, Major approached East Towne assistant manager Earl Vander Wielen regarding a performance in the mall. Vander Wielen told Major the performance involved potentially controversial issues and refused to approve it.
On April 12, 1984, Major hand delivered a form letter to as many store managers within the mall as he could find. The letter explained the Nu Parable dance, expressed the intent to perform it within the mall on Saturday, April 21, 1984, and solicited the support and cooperation of the merchants. Mall management asked Major to stop distributing the letters, but he refused to do so.
On April 18, 1984, appellants brought this action and obtained a temporary restraining order barring respondents from entering East Towne Mall except as shoppers. About one week later, Major and another Nu Parable member distributed a similar letter to West Towne merchants, expressing the intent to dance there on Saturday, May 5. On May 1, 1984, appellants’ complaint was amended to include West Towne and another restraining order was issued covering that premises.
Respondents answered and counterclaimed on May 10, 1984. The counterclaim alleged that appellants’ ban on “political, religious and artistic expression” in their malls violated respondents’ rights under
Major, Samuel Day, Jr. and others entered East Towne Mall on May 19, 1984, and distributed leaflets providing in part:
Nu Parable wants to dance for you at East Towne Mall but has been legally restrained from doing so by the Ohio corporation which owns the shopping center. ...
[M]ake your views known to the shopkeepers here. Ask them to tell mall manager David Van Dusen that they support free speech at East Towne Mall.
A similar leaflet was distributed on May 26 at West Towne. In each instance, participants leafletted without appellants’ consent and refused to leave when requested to do so.
Appellants received a temporary injunction on June 1, 1984, enjoining respondents and all others “acting ... in concert with them” from entering either East Towne or West Towne except as bona fide shoppers. On June 6 and 20, Day and others distributed “Friends of Nu Parable” leaflets at West Towne and East Towne, respectively. Contempt proceedings were instituted against Day on June 21.
A contempt hearing was held on June 29, 1984. The trial court declined to entertain the merits of the motion and instructed appellants to institute a sepa-
On August 9, 1984, Major, William Mutranowski and three others entered East Towne Mall in costume. Mall security personnel asked them not to perform, but the troupe danced and leafletted mall patrons. The press, radio and television covered the event. Several stores within the mall suffered identifiable reductions in sales that day.
On August 21, 1984, the trial court held Major, Mutranowski and the other dancers in contempt for their August 9 activities, and committed them to the Dane County Jail for seven days. Day and others continued to periodically leaflet at both malls as the “Family of Nu Parable,” as “Disarmament Now” and as “Friends of The Bill of Rights.” There were no further dances in the malls.
The trial on appellants’ complaint took place in early January of 1985. On January 23, the court entered judgment permanently enjoining respondents “from performing in any way upon plaintiffs’ property” and denying appellants’ request for “nominal and compensatory damages.” Appellants appealed from all of the judgment which “expressly or impliedly denies or fails to grant all of the relief requested. ...”1 Respondents cross-appealed, alleging infringement of their rights of free expression under
CONSTITUTIONAL QUESTION
Appellants argue that there is no need to reach a constitutional question in order to grant it full relief. They contend that Justice Rehnquist‘s statement in PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980), that the Court could not “limit the authority of [a] State to exercise ... its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution”2 cannot be read as license for state courts to ignore the fourteenth amendment in construing their own constitutions. We agree, but note that PruneYard sets the fifth amendment guarantee against taking property without just compensation and the fourteenth amendment guarantee against deprivation of property without due process of law, not as an absolute criterion, but as an upper limit on state constitutional liberties.
The first amendment recognizes certain expressional rights as an irreducible minimum guaranteed to all citizens against governmental infringement. The fifth and fourteenth amendments recognize the minimum property rights accorded to owners. The Supreme Court in PruneYard permitted California to establish
We conclude, therefore, that we may interpret
STATE ACTION REQUIREMENT
The first amendment contains an express state action requirement. It does not safeguard speech against limitations imposed by owners of private property. Hudgens v. NLRB, 424 U.S. 507, 513 (1976); Harman v. La Crosse Tribune, 117 Wis. 2d 448, 452, 344 N.W.2d 536, 539 (Ct.App.), cert. denied, 469 U.S. 803, 83 L.Ed. 2d 9 (1984). The case at hand, however, involves only the free speech provisions of the Wisconsin Constitution.
The language of
Respondents suggest that Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141, cert. denied, 459 U.S. 883 (1982), Augustine v. Anti-Defamation Lg. B‘nai B‘rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1977), and Milwaukee E. R. & L. Co. v. Pallange, 205 Wis. 126, 236 N.W. 549 (1931), illustrate the Wisconsin Supreme Court‘s willingness to apply the state constitution‘s free speech provisions in a wholly private context. The Pallange and Denny cases were private civil defamation actions and the Augustine case was an action for tortious interference with contract. Because
Appellants cite Lawson v. Housing Authority, 270 Wis. 269, 274, 70 N.W.2d 605, 608, cert. denied, 350 U.S. 882 (1955), for the proposition that “[sec.] 3 ... art. I of the Wisconsin constitution, guarantee[s] the same freedom of speech ... as do the First and Fourteenth amendments of the United States constitution.” Appellants argue that a coordinated reading of Hudgens and Lawson compels the conclusion that free speech rights under the Wisconsin Constitution cannot be interpreted more expansively than those accorded by the federal Bill of Rights. Accordingly, they maintain,
Lawson does not require that result. That case, involving a constitutionally suspect resolution of the City of Milwaukee Housing Authority, plainly implicates only state action. Certainly as to governmental infringements of speech, the Wisconsin and federal constitutional protections are essentially coextensive. Lawson says as much. “If Resolution 513 violates [the first] amendment it follows as a necessary corollary thereof that it also violates either sec. 3 or 4, art. I of the Wisconsin constitution, or both.” Id. at 282, 70 N.W.2d at 612. However, the case nowhere holds that state action is a threshold requirement of subject matter jurisdiction under
The Wisconsin Constitution should be interpreted “in the light of the circumstances and discussions which led to its adoption, and similar provisions existing in other state constitutions at the time, as well as subsequent adjudications upon the meaning of the words employed.” The Wisconsin Central Railroad Co. v. Taylor County and others, 52 Wis. 37, 95, 8 N.W. 833, 855 (1881). There was no debate on the free speech provision at either the 1846 or 1848 Wisconsin constitutional convention. Therefore, the journals of the conventions provide no clues as to the source of or intent of the framers regarding this section. We note, however, that the central emphasis of the preamble to the Wisconsin Constitution is the freedom of the people and the protection of their liberties. The establishment of government is given only secondary emphasis. “By the preamble, preservation of liberty is given prece-
However, the wording of
The New York Court of Appeals recently held in a case factually similar to the one at hand that “discernment of the reach of the mandates of our State Constitution, precludes us from casting aside so fundamental a concept as State action. ...” SHAD Alliance v. Smith Haven Mall, 488 N.E.2d 1211, 1217 (N.Y. 1985).6 Because Wisconsin‘s free speech provision was apparently modeled after New York‘s, we should give this construction great weight. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574, 577, 263 N.W.2d 218, 221 (1978). Simultaneously, however, we should not adopt New York‘s construction of its own constitution if we conclude that the better rule would be a different construction. B.F. Sturtevant Co. v. Industrial Comm., 186 Wis. 10, 17, 202 N.W. 324, 326 (1925).
Further, a hidebound requirement of state action poses a number of difficult problems. First, we do not think that the
Second, while the
We conclude, therefore, that Wisconsin‘s Declaration of Rights provides a freedom of expression compli
Appellants contend that this result cannot be reached without a companion conclusion that
A statute attacked as unconstitutional must affect the litigant in some way. State v. Holmes, 106 Wis. 2d 31, 38, 315 N.W.2d 703, 707 (1982). Wisconsin‘s trespass statute is not implicated in the civil case at hand. We do not create a constitutional defense to criminal liability for trespass here because no such liability has been alleged.
Given an appropriate criminal trespass case, however, such a defense could be created without invalidating the statute. All statutes are presumed constitutional. In Matter of Guardianship of Nelson, 98 Wis. 2d 261, 266, 296 N.W.2d 736, 738 (1980), and we must uphold a statute where we can. State ex rel. Chobot v. Circuit Court, 61 Wis. 2d 354, 367, 212 N.W.2d 690, 696-97 (1973). Therefore, a criminal statute may be
Private property rights may be reasonably regulated to promote the public welfare. Just v. Marinette County, 56 Wis. 2d 7, 15, 201 N.W.2d 761, 767 (1972). We believe this concept underlies
THE BALANCING OF COMPETING INTERESTS
Private property is always held subject to the state‘s police power, Eggebeen v. Sonnenberg, 239 Wis. 213, 218, 1 N.W.2d 84, 86 (1941), and its use may be reasonably regulated, within constitutional bounds, in the interest of the public welfare. Just, 56 Wis. 2d at 15, 201 N.W.2d at 767; PruneYard, supra, 447 U.S. at 81. A number of courts have found that such restrictions may be reasonably imposed on certain property use in order to protect rights of free expression. See e.g., State v. Schmid, 423 A.2d 615 (N.J. 1980); Robins v. PruneYard Shopping Center, 592 P.2d 341 (Cal. 1979), aff‘d sub nom 447 U.S. 74 (1980). We are persuaded to do likewise.
However, free speech rights are also subject to reasonable regulation, State v. Zwicker, 41 Wis. 2d 497, 510, 164 N.W.2d 512, 518 (1969), appeal dismissed, 396 U.S. 26 (1969), and the elimination of the state action barrier by no means renders those rights absolute. Therefore, we must strike the best balance within this constitutional framework between recognized interests in
The greatest advantage of such direct balancing is its adaptability to changing circumstances and socioeconomic conditions.8 This flexibility is important in keeping the Wisconsin Constitution vital. The Wisconsin Supreme Court in Borgnis v. Falk Co., 147 Wis. 327, 349-50, 133 N.W. 209, 215-16 (1911), noted that:
When an eighteenth century constitution forms the charter of liberty of a twentieth century government must its general provisions be construed and interpreted by an eighteenth century mind in light of eighteenth century conditions and ideals? Clearly not. . . .
[T]he changed social, economic and governmental conditions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential factors in the settlement of problems of construction and interpretation.
However, we must also be mindful of two important disadvantages of the balancing approach. First, guidance to lower courts and citizens concerning what kind of speech activities and property interests are likely to prevail is initially uncertain, creating the potential for a surge of litigation. Second, there is the appearance of a reallocation of a traditionally legislative function to the courts. We do not believe either disad
First, the general contours of our decisional process can be framed in terms of a multi-factor test. The process will quickly become both clearer and established as precedent as the law is applied in a few subsequent cases. Our review of the case law in those states which have adopted balancing tests has not disclosed a “floodgates” problem caused by the choice of that analysis.
Second, we are well aware that the courts of Wisconsin lack both the constitutional authority and the functional capacity to fulfill a legislative role. However, the full protection of constitutional rights has always relied more upon the judiciary‘s powers than on statutory protections. This is so in the free speech context because legislatures, as majoritarian institutions, rarely provide adequate safeguards for the expression of potentially unpopular minority views. “‘Just as the Legislature cannot abridge constitutional rights by its enactments, it cannot curtail them through its silence. . . .‘” (Citation omitted.) Schmid, 423 A.2d at 627.
Further, the people—through the Legislature—are ultimately capable of influencing the outcome of cases such as the one at hand. The legislature may establish statutory presumptions regarding those non-constitutional elements contributing to a result in a given case. Additionally, the Wisconsin Constitution, despite its status as a fundamental charter of governmental powers and private rights, is readily susceptible to amendment or revision in response to public mandate.
Several other state courts have weighed conflicting speech and property rights and struck a functional
The balancing test crafted by the Supreme Court of New Jersey in Schmid is noteworthy.9 That court
derive[d] some guidance from certain of the Supreme Court cases, such as Marsh v. Alabama, [326 U.S. 501 (1946)], Lloyd Corp. v. Tanner, [407 U.S. 551 (1972)], and PruneYard Shopping Center v. Robins, supra, which recognize generally that the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property.
Id., 423 A.2d at 629-30. The Schmid court evolved a multi-factor test to determine the extent to which the use of private property could be restricted to accommodate the rights of free speech exercised upon it. That test weighed “(1) the nature, purposes, and primary use of such private property, generally, its ‘normal’ use, (2) the extent and nature of the public‘s invitation to use that property, and (3) the purpose of the expressional
The Schmid test accounts for all of the factors we deem important to the resolution of the case before us. We adopt it.
(1) “Normal” Use of The Property
Our analysis begins with an examination of the primary, “normal” use of the private property in question: the East Towne and West Towne Malls. The trial court, in ruling on the permanent injunction, said:
The plaintiffs are in business to make a profit and their profit is derived primarily from leasing space to the mall stores and from deriving a percentage of revenue based upon the volume of sales of each of the mall stores. In order to attract customers into the mall, the plaintiffs spent a great deal of money and effort to promote the mall by the establishment of walkways, fountains, greenery and seating, all in the common area, in an effort to create an attractive, restful and non-disruptive atmosphere which would hopefully put the shoppers in a mood to patronize the mall stores. In addition, the plaintiffs, together with the Merchants Organization, put on various promotions in an effort to attract shoppers to the mall. These attractions fall into three categories. In the first category are attractions which the merchants themselves pay for.
This includes entertainment such as magicians, soap stars and celebrities. In the second category are attractions which the sponsor of those attractions pay to be allowed to produce. These consist of, for example, antique auto shows, boat shows and floral shows. In the third category fall such attractions as girl scout displays and fashion shows which are shown at no cost to the merchants or to the people putting on the attractions. The purpose of such attractions is to draw customers and hopefully put them in a mood to spend money at the mall stores.
These findings are amply supported by the record and are not clearly erroneous. Noll v. Dimiceli‘s, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575, 577 (Ct.App. 1983).
Some state courts have labeled shopping malls the functional equivalent of public property. We cannot go that far in this case. There is some evidence that appellants’ management initially characterized the malls as “community centers” and that a portion of regular traffic is unrelated to shopping. This evidence of limited public uses propels the East and West Towne Malls some distance along the Marsh continuum requiring increasing accommodation of the individual rights of the public on these premises. However, the malls’ primary use here is in no sense the functional equivalent of public sidewalks or the traditional town square.10
The trial court‘s characterization paints a fundamentally accurate picture of the properties’ “normal use.”
(2) Nature of Public Invitation
The record shows that the nature of appellant‘s invitation to the public to enter and use the shopping malls largely parallels the primary use to which the property is put. That is, advertising invites the public into the malls primarily to patronize the tenant stores. The trial court also found what could be called a “negative invitation” in the form of a “firm policy” of prohibiting political campaigning, religious activities, soliciting and the distribution of handbills in the mall. These findings are not clearly erroneous. Noll, 115 Wis. 2d at 643, 340 N.W.2d at 577.
However, there is nothing in the record to show that the essence of these invitations and prohibitions was express. Nor is there evidence that appellants actively excluded persons seeking to enter the mall for purposes other than shopping if those purposes were not among those prohibited by management. However, even though a large-scale public presence is essential to the realization of appellants’ commercial ends, the record does not demonstrate the existence of an open, unqualified invitation to the public, either express or implied.
This factor raises the question of whether respondents’ expressional activities are incompatible in any sense with both the private and public uses of the shopping malls. That is, is there anything in the record to suggest that respondents’ performance was discordant with appellants’ professed commercial goals or the use of their property to those ends?11
We have concluded that the trial court correctly found that the primary use of appellants’ property was to promote the patronage of the tenant stores. They encourage this effect through a significant investment in the maintenance of pleasant surroundings, promotional activities and various forms of entertainment. Thus, the effects of both the style and content of respondents’ expressional activity on mall patronage must be considered.
Respondents’ professed purpose in performing its dance is to convey a thought-provoking image of the horrors of nuclear warfare. The dance concludes with a “die-in,” when spectators are invited to join the dancers in crumpling to the floor. Appellants’ central concern is that this performance is substantially unlike other activities within the malls. They contend that it disturbs and drives away shoppers the malls were created to attract. The trial court agreed, finding that—
Review of this determination implicates mixed questions of fact and law. We apply a “clearly erroneous” standard to the factual portion of the court‘s determination. Noll, 115 Wis. 2d at 643, 340 N.W.2d at 577. The connected questions of law we review independently. Ball v. District No. 4, Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389, 394 (1984).
The trial court found that when respondents performed at the East Towne Mall on Thursday, August 9, 1984, they “created a definite economic impact . . . upon the mall merchants who were in proximity of the performance, which in turn caused an economic impact upon the [appellants.]” The court based this finding upon the testimony of a number of East Towne store managers to the effect that their sales for August 9 were depressed below average daily receipts by varying, but identifiable, amounts.12 It noted that none of
those witnesses could give an explanation other than the performance of the dance to account for this adverse effect. The court found this testimony credible, and also admitted into evidence bookkeeping records documenting these dips in sales.
Respondents suggest that the depressed sales on August 9, 1984, could just as easily be attributed to the presence of mall security guards and Madison Police officers during and after the dance. However the record contains no evidence to support this argument.
Appellants also introduced the results of a number of recent public opinion studies—one conducted in the Madison market—to show that shopping mall activities by special interest groups actively discourage shoppers from entering or remaining in the malls.13 Respondents do not challenge the admissibility of this
We are mindful of the many faults and limitations of public opinion research. Nevertheless, such limitations go only to the weight and credibility such evidence is to be given. Here the trial court—as factfinder—chose to give the results of these studies some weight. We defer to its decision to do so. State v. Higginbotham, 110 Wis. 2d 393, 405, 329 N.W.2d 250, 256 (Ct.App. 1982).
The record contains ample, substantially uncontroverted evidence to support the court‘s finding that the August 9 dance adversely affected sales at East Towne. We conclude, therefore, that this finding is not clearly erroneous. Noll, 115 Wis. 2d at 643, 340 N.W.2d at 577. Because appellants have demonstrated an impairment of the use and value of their property, this case distinguishes itself from many of the factually similar cases in other states.14
The conclusion is unavoidable that the Nu Parable dance was disruptive to the primary use of appellants’ property and was not related in any way to appellants’ limited public invitation to shop on its property. It is possible, therefore, that respondents’ conduct rises to the level of an abuse of their free speech rights for which they are responsible under
(4) Time, Place and Manner Restrictions
Though we have said that an owner of private property may be constitutionally obligated under certain circumstances to honor the free speech rights of others, his private property and free speech rights must also receive a measure of protection. PruneYard, 447 U.S. at 81. Therefore, the owner of such property is entitled to impose reasonable rules and conditions for the individual exercise of expressional rights upon that property.
Appellants contend that recognition of respondents’ free speech rights on private property under Wisconsin‘s constitution would necessarily deny appellants’ rights under the
However, appellants also assert that respondents’ access to the malls might impair the mall owners’ own first amendment rights. They argue that the state may
The United States Supreme Court in PruneYard noted that Wooley v. Maynard, 430 U.S. 705, 717 (1977)—stating the rule that persons have a first amendment right not to help at their expense to spread a message with which they disagree—was distinguishable on several grounds. First, Wooley was a case in which the government prescribed the specific message required to be displayed on the appellant‘s private property. Where no such message is dictated, there is no danger of governmental discrimination for or against a particular message. Second, the shopping mall is not property held for the personal use of appellants, it is open to the public. Thus, it is less likely that public speech there will be identified with the owners. Finally, the Court held that the mall owners were free to “expressly disavow any connection with the message by simply posting signs in the area where the speakers for handbillers stand.” PruneYard, 447 U.S. at 87. A number of these factors (and the PruneYard thesis in general) were again considered in Pacific Gas & Elec. v. California P.U.C., 475 U.S. 1, 89 L.Ed. 2d 1 (1986), and appear vital. They also appear applicable to the case at hand.
Appellants argue, however, that the results of Dane County, Flint, Michigan, and Hartford, Connecticut public opinion studies demonstrate that more than 25% of the surveyed shoppers identify speech activities within a shopping center with its owners. Nonetheless, the record contains no evidence that any mall patron mistook the Nu Parable dance for a demonstration of appellants’ political views. Nor do these studies ac
Respondents argue that appellants’ existing scheme of screening and accommodating shows, displays and promotions amounts to time, place and manner regulation, and that it has proven successful in protecting their commercial interest.15 We agree. Because appellants retain the full right to reasonably regulate the use of their properties, their
Finally, we consider whether there exist feasible and convenient alternative means by which appellants could meaningfully engage in the same expressional activities. The Schmid court noted that
[w]hile the presence of such alternatives will not eliminate the constitutional duty, it may lighten the obligations upon the private property owner to accommodate the expressional rights of others and may also serve to condition the content of any regulations governing the time, place and manner for the exercise of such expressional rights.
The record shows that Nu Parable has had a fairly extensive history of public performances. Its first performance occurred at a United States post office in Madison as part of a “tax day rally” in April, 1984. Subsequently, the group danced at a public park off the State Street Mall in Madison; in the State Capitol Rotunda; on the steps of the city-county building in Madison; atop Bascom Hill, on the Library Mall, in Camp Randall Stadium and in the Memorial Union at the University of Wisconsin; on the grounds of East and West High Schools in Madison; at the Dane County Airport terminal; at the Madison Civic Center; and at two locations in Wausau.
We take judicial notice of the fact that a number of these sites have, over the years, become traditional fora for the expression of ideas, public discourse and debate. Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 433, 180 N.W.2d 562, 564 (1970) (Judicial notice may be taken of matters of common knowledge). The
The record also contains extensive evidence regarding the various mass media potentially available to respondents in Dane County.16
The audiences reachable through any of these channels might not be as numerous or concentrated as those available in a shopping mall environment. Nonetheless, because of the number and pervasiveness of these channels, we conclude that respondents’ ability to publicly communicate their message is not foreclosed or even seriously limited by either the enforcement of the injunction or reasonable regulation of mall access for expressive activities other than “performance.”
Our review of the preceding five factors convinces us that the balance tips in favor of appellants’ asserted property rights. The Nu Parable performance has demonstrably conflicted with and impaired the primary use and value of appellants’ private property. Further, there exist adequate alternate channels and fora for respondents’ expressive activities. Therefore, respondents were properly enjoined.
Appellants challenge the court‘s refusal to amend the judgment to enlarge the injunction to cover expressional activities beyond “performances” on their property.17 They express concern that other forms of expressional activity by respondents pose a threat of harm to their property interests similar to that demonstrated in connection with the Nu Parable dance.
The grant or denial of injunctive relief is within the trial court‘s sound discretion and will not be reversed on appeal without a showing of an abuse of discretion. Mercury Record v. Economic Consultants, 91 Wis. 2d 482, 500, 283 N.W.2d 613, 622 (Ct.App. 1979). “To find an abuse of discretion [we must determine] either that discretion was not exercised or that there was no reasonable basis for the trial court‘s decision.” Wisconsin Public Service Corp. v. Krist, 104 Wis. 2d 381, 395, 311 N.W.2d 624, 631 (1981).
In denying appellants’ motion, the court noted that all the evidence received at trial
was directed to whether or not the Nu Parable people should be allowed to perform in the malls, and the Court decided . . . that they should not be. . . . Now, I did not concern myself with leafletting or petitions, and I had no reason to do so. . . . [These] matters are now being pursued, at least in part, in another branch of the Circuit Court.
We conclude that the court exercised its discretion. We now must determine whether there was a reasonable basis for its decision.
Injunctive relief is to be tailored to the necessities of the particular case. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61 (1975). This is especially true regarding permanent injunctions. Here, though the record discloses evidence of continued leafletting by individuals other than respondents, appellants’ proof of actual economic impact was linked wholly to respondents’ August 9, 1984, dance at East Towne Mall.
Further, the case brought by appellants against Samuel Day, et al., was then pending in another branch of the circuit court. That case dealt directly with leafletting and other forms of non-dance expression. The defendants in that case were among those identified as working “in concert with” respondents in the instant case.
We may not substitute our discretion for that of the trial court. Barrera v. State, 99 Wis. 2d 269, 282, 298 N.W.2d 820, 826 (1980), cert. denied, 451 U.S. 972 (1981). We may, however, search the record for reasonable bases sufficient to sustain the court‘s decision. Loomans v. Milwaukee Mut. Ins. Co., 38 Wis. 2d 656, 662, 158 N.W.2d 318, 320 (1968). Given the factors noted above, we conclude that the record provides a reasonable basis for the court‘s decision. It did not abuse its discretion by limiting injunctive relief to the established threat.
DAY CONTEMPT
Finally, appellants contend that the trial court erred by refusing to entertain contempt proceedings against Samuel Day arising from his distribution of handbills in East Towne Mall on June 20, 1984. This is so, they argue, because Day thereby violated the temporary injunction ordered by the court,18 and because “[n]ormally, the order to show cause [in a contempt matter] should be filed in the same action in which the order allegedly violated was filed.” Dalton v. Meister, 84 Wis. 2d 303, 309, 267 N.W.2d 326, 329 (1978).
The exercise of a court‘s contempt power is discretionary. In re Paternity of D.A.A.P., 117 Wis. 2d 120, 127, 344 N.W.2d 200, 203 (Ct.App. 1983). We will not upset the court‘s decision to dismiss a contempt proceeding unless the court‘s discretion was not exercised or there is no reasonable basis for the court‘s decision. Krist, 104 Wis. 2d at 395, 311 N.W.2d at 631.
The transcript of the contempt hearing shows that the court was seeking to limit the issues at trial. It said:
We‘ve got one action against Robert Major and Nu Parable, which hopefully is proceeding to trial. The Court has ruled that it‘s illegal to distribute pamphlets, as Mr. Day and other people are doing at East Towne or West Towne. That has nothing to do with Major or Nu Parable. If Mr. Day or anybody else out there distributing pamphlets [sic], there‘s a restraining order against him. . . .
I just can‘t see why you have to allege the “in concert” theory when you‘ve got an individual who is restrained from doing this, that you can bring into court . . . it‘s cluttering up the case that we have going against Major and Nu Parable. I still feel . . . that the proper procedure would be for you to start [a] separate action . . . against Sam Day . . . and bring him into this court or any other court seeking contempt for violation of the restraining order. . . .
It is apparent that the court exercised its discretion. We now must determine whether the basis for its decision was reasonable.
The record discloses evidence of substantial leafletting activity in the malls by more than a dozen individuals on a number of occasions after entry of the restraining order and temporary injunction. The potential existed for a large number of contempt motions. Because contempt power should be used only after great deliberation, State v. Braunsdorf, 98 Wis. 2d 569, 587, 297 N.W.2d 808, 816 (1980), the court could reasonably have perceived the potential for extensive collateral contempt proceedings as a genuine threat to the prompt and orderly determination of the central issues in the case before it.
We may not substitute our discretion for that of the trial court. Barrera, 99 Wis. 2d at 282, 298 N.W.2d at 826. Because there was a reasonable basis for the court‘s disposition of the Day contempt motion, we sustain the court‘s decision.
By the Court.—Judgment affirmed.
GARTZKE, P.J. (concurring). I conclude that the free speech provisions in
The constitutional provision at issue is the third section of the Declaration of Rights in the
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. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
That Wisconsin may grant greater constitutional rights to persons within its borders than does the United States Constitution is well established. Both the United States Supreme Court and the Wisconsin Supreme Court recognize this principle. That Wiscon
The question before us is more limited. The question is whether
We cannot resolve the question by deciding whether it is good public policy to give private persons a right of free speech enforceable against other private persons. We “are not obliged to explain that what is constitutional is also good, nor that everything good also is constitutional.” Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 180 (1984).
Nor does the answer lie in how the United States Supreme Court has interpreted the
The answer lies in the proper interpretation of
The Wisconsin Supreme Court has articulated the analysis which every court must use when interpreting a provision in the Wisconsin Constitution. State v. Beno, 116 Wis. 2d 122, 136, 341 N.W.2d 668, 675 (1984). The analysis requires a court first to examine the plain meaning of the words in the context used. If the meaning is not plain, the court then makes an historical analysis of the constitutional debate and of the practices in 1848 which may reasonably be presumed were known to the framers of the 1848 constitution. The next step is to examine the earliest legislative interpretation of the provision as manifested in the first law passed following adoption of the constitution. Id. at 136-37, 341 N.W.2d at 675; Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141, 149 (1976); Board of Education v. Sinclair, 65 Wis. 2d 179, 182-84, 222 N.W.2d 143, 145-46 (1974). If these rules of constitutional interpretation do not provide an answer, the court may look to the objectives of the framers in adopting the provision. Beno, 116 Wis. 2d at 138, 341 N.W.2d at 676.
The Beno court dealt with
The constitutional context of the free speech provision is the Declaration of Rights. Section 3 has been part of this state‘s Declaration of Rights since 1848. In that year the people ratified not only the constitution but those sections separately set off from all others as a Declaration of Rights. That heading was adopted as part of the constitution. Accordingly, the heading of art. 1, Declaration of Rights, is not something which may be ignored as may, for example, a statute‘s title.2 The heading is as much a part of the constitution as sec. 3 itself.
A proper understanding of the free speech provisions in
We look to the views of historians because history helps us understand the constitution. State ex rel. Weiss v. District Board, 76 Wis. 177, 203, 44 N.W. 967, 976 (1890) (Cassoday, J., concurring). We are to “put ourselves in the place the constitution makers occupied,—look at the situation they had in view through the same vista they observed it. . . .” State ex rel. Owen v. Donald, 160 Wis. 21, 81, 151 N.W. 331, 350 (1915). We must try to think like mid-nineteenth century constitution makers probably thought, for sec. 3 of the Declaration of Rights has never been amended since its adoption in 1848.
By stating the people‘s retained rights, a declaration or bill of rights in the early constitutions satisfied the second part of a theory of government. That twofold theory distinguishes rights entrusted by the people to the state for safeguarding from retained rights withheld from state interference. The theory is described by C. H. McIlwain in 2 Encyclopaedia of the Social Sciences 545-46 (1930):
The basic theory underlying the early bills of rights is a belief in the rights of individual men and in rights existing in the law of nature independent of states or their laws, as set forth especially in Locke‘s Second Treatise of Government (1690). Some of these rights were regarded as alienable and might be entrusted by a people to its government for due compensation, but there are others of which no man is ever capable of divesting himself or his posterity even by consent or for compensation; they are inalienable. An instrument of government ought then to consist of two parts: a “frame” or form of government in which the first of these two kinds of rights, the alienable ones, are entrusted to the various organs of the state under proper safeguards for due compensation in the form of just and effective government; and a “bill of rights” enumerating the inalienable rights of the people which they cannot delegate to their government and which the latter is explicitly forbidden ever to infringe.
At the time of the American Revolution, a consensus existed that “[n]o written constitution can be considered complete unless it embodies a specific declaration of rights.” C. Rossiter, Political Thought of the American Revolution 185 (1953). “The bill of rights was to be something more than a symbol or incantation. The plan and powers of government had to conform to the people‘s own statement of the rights they were retaining.” Id. at 186.
That the same point applied to state constitutions was recognized soon after the United States Constitution was adopted on September 18, 1787. Only four months later, January 17, 1788, “Brutus” said, “[a]ll the state constitutions, contain either formal bills of rights, which set bounds to the powers of the legisla
A legal historian, Professor James Willard Hurst, refers to “the liberty guaranteed by the negatives, which the Bill of Rights sets on official power.” J. Hurst, Law and the Conditions of Freedom 37 (1956). He describes the state constitutions as having “dealt largely with the limitation of powers that resided in state governments without the need of affirmative grant.” J. Hurst, The Growth of American Law 241 (1950).
Other historians agree. In the first state constitutions the “[p]rincipal restraints placed on lawmaking bodies were the bills of rights designed to protect persons and property from arbitrary government action.” A. Sturm, The Development of American State Constitutions, in Publius 61 (Winter 1982). Few changes in state bills of rights occurred between 1800 and 1860. Id. at 63. Professor W. Y. Elliott refers to bills of rights in state constitutions as ”admonitions to the legislature which aimed at preventing the abuse of private rights.” Elliott, The Constitution as the American Social Myth, in The Constitution Reconsidered 217 (C. Read ed. 1938) (emphasis in original). The same thought is expressed in C. Friedrich & R. McCloskey, The Roots of American Constitutionalism, in From the Declaration of Independence to the Constitution xix (1954): the key idea of a bill of rights is “that of the sacred sphere of human right which no government invades but at its peril.”
In his historical discussion of liberty, Professor Roscoe Pound said that the “liberty guaranteed by our bills of rights is a reservation to the individual of certain fundamental reasonable expectations. . . .”
Justice Story, who served on the United States Supreme Court from 1811 to 1845, recognized the nature of a bill of rights. He wrote,
[A] bill of rights is important, and may often be indispensable, whenever it operates, as a qualification upon powers, actually granted by the people to the government. This is the real ground of all the bills of rights in the parent country, in the colonial constitutions and laws, and in the state constitutions.
3 J. Story, Commentaries on the Constitution of the United States sec. 1858, at 718 (Boston 1833).3
The Wisconsin Supreme Court has recognized that our Declaration of Rights creates limitations or restrictions on state action. Section 1 of the Declaration of
Section 9 of the Declaration of Rights contains no reference to laws or express limitation on state action.6 Durkee v. City of Janesville, 28 Wis. 464, 469–71 (1871), nevertheless held that
By 1910 the supreme court could state generally that the Declaration of Rights “constitute[s] inhibitions of legislative interference by implication, and with quite as much efficiency as would express limitations, as this court has often held.” State ex rel. McGrael v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041, 1946 (1910).
Given these repeated references to the Declaration of Rights as a limitation on state action, we should find some support in the decisions of the Wisconsin Supreme Court for the proposition that our Declaration does not protect private persons from private interference. Although the Wisconsin Supreme Court has seldom had to recognize the principle, a few decisions support it.
Section 18 of the Declaration of Rights guarantees freedom of religion to every person in this state.8 Section 18 does not refer to state action except that preference may not be given to any religious establishment or mode of worship and state funds may not be used to benefit religious organizations. When, however, a mother bequeathed annual payments to her son on condition that he attend a named church, the supreme court rejected his argument that the condition was repugnant to
In State ex rel. Dame v. LeFevre, 251 Wis. 146, 28 N.W.2d 349 (1947), an expelled union member sought reinstatement. The LeFevre court rejected his claim that he could not be expelled without due process of law. The court said, “The due process clauses of the state and federal constitutions are not applicable to contract relationships between individuals.” Id. at 152, 28 N.W.2d at 353.
Section 11 of the Declaration of Rights protects persons against unreasonable searches and seizures, but does not expressly limit the right against unreasonable searches and seizures to those conducted by the state.9 Ware v. State, 201 Wis. 425, 230 N.W. 80 (1930), held that defendant‘s diary was admissible in evidence against her. Defendant‘s former husband had taken a key from her purse, unlocked the chest in which the diary was kept and apparently delivered it to the prosecution. The Ware court held that procurement of the diary did not violate some constitutional right of the defendant. Id. at 427, 230 N.W. at 80–81. See also Potman v. State, 259 Wis. 234, 239-40, 47 N.W.2d 884, 886-87 (1951) (search by private persons without defendant‘s consent does not violate
That the Wisconsin Declaration of Rights was intended when written to restrict state action therefore cannot be doubted. Mid-nineteenth century lawyers had to understand that the function of a declaration or bill of rights is to restrain state interference with individual liberties. Nineteen lawyers were members
Hence, the suggestion that a specific provision in the Declaration grants rights to persons enforceable against other private persons proposes a new direction. The proposal would work a change from withholding rights from government action to granting rights in every person enforceable against all other persons. To hold that a negative restraint on government creates a positive right assertable against all other persons would be a sharp and unexpected deviation from the apparent original course.
Because the proposed change deviates from the original direction of the Declaration of Rights, we should presume that a specific provision in the Declaration is intended to protect persons only from state action unless strong evidence exists to the contrary. When constitution makers can be found, as here, to have had an intention consistent with a prevailing concept of government, but we are urged to find that they intended an additional theory, it is fair to force proponents of the new theory to prove that it also was intended.
The presumption that protection only from state action was intended accommodates those provisions in the Declaration of Rights which may protect persons from certain actions by private persons.
The presumption should apply at every level when interpreting the Declaration of Rights, since the aim of constitutional analysis is to find the meaning intended by the framers. State ex rel. Zimmerman, 201 Wis. at 88-89, 228 N.W. at 595. This is true whether the analysis stops at the plain meaning stage or reaches the other methods of constitutional interpretation outlined in Beno.
Having outlined the presumption necessary when interpreting a section of the Declaration of Rights, I turn to the first stage of constitutional analysis mandated by the Beno court. 116 Wis. 2d at 136-37, 341 N.W.2d at 675:
Whether a constitutional provision has a plain meaning turns on the answer to a single question: can reasonable persons understand the provision differently? State v. Beno, 110 Wis. 2d 40, 48, 327 N.W.2d 712, 716 (Ct. App. 1982), rev‘d on other grounds, 116 Wis. 2d 122, 341 N.W.2d 668 (1984).
Each of the two clauses in the first sentence of
The redundancy issue was raised in Cologne v. Westfarms Associates, 469 A.2d 1201 (Conn. 1984). An advocacy group had demanded access to a privately-owned shopping mall for free speech purposes. Section 4 of the
First, the Cologne court said that sec. 5 “literally applies only to the passage of laws restraining freedom of speech or press and does not by its terms afford protection provided by sec. 4 against restrictions upon the exercise of those rights which government officials may impose whether or not sanctioned by law.” 469 A.2d at 1209. The same approach would at least partially dispose of the redundancy issue regarding
Second, the Cologne court reviewed the debate at the Connecticut constitutional convention of 1818. The court read certain remarks at the convention to indicate that sec. 4 is a limitation on sec. 5. The limitation would authorize the passage of laws or the application
I conclude that whether it is minimal or not, the redundancy issue regarding the first and second clauses in the first sentence of
Because the first sentence of
The 1848 convention convened December 15, 1847. Journal of the Convention to Form a Constitution for the State of Wisconsin 3 (Madison 1848). One week later the committee on general provisions reported on an unnumbered article entitled “Declaration of Rights,” sec. 3 of which became the present sec. 3 of the Declaration. Id. at 50. During the entire convention a single amendment to strike certain words in the second sentence was proposed to sec. 3. The motion failed. Id. at 92. The record of the 1848 debate therefore fails to illuminate the free speech provision in
Since the debates in the 1848 constitutional convention do not help us, we turn to those in the 1846 constitutional convention. We look to the earlier convention if, as here, the present constitution and the rejected 1846 constitution contain a similar provision. State ex rel. Zilisch v. Auer, 197 Wis. 284, 289-90, 221 N.W. 860, 862 (1928). The first sentence of sec. 3 in the Bill of Rights, art. XVI, of the rejected constitution of 1846 is identical to that in sec. 3 of the Declaration of Rights in the 1848 constitution.
The 1846 convention convened October 5, 1846. Journal of the Convention to Form a Constitution for the State of Wisconsin 3 (Madison 1847). October 28, 1846, the committee on a bill of rights recommended adoption of a bill, sec. 5 of which provided: “The legislature shall make no law abridging the freedom of speech, or the right of the people peaceably to assemble, and to petition for a redress of grievances.” Id. at p. 123. November 4, 1846 the convention resolved itself into a committee of the whole for the consideration of the proposed bill of rights, “[a]nd after some time spent therein, the committee rose, and reported progress, and asked leave to sit again.” Id. at 194-95. The committee continued to consider the bill of rights the next morning and afternoon. Id. at 197-98. Few other references to the bill of rights appear in the 1846 Journal. Id. at 294-301.
Milo M. Quaife, of The State Historical Society of Wisconsin, fleshed out both the 1846 and 1848 Journals. He did so because, “the constitutional fathers of Wisconsin were chary of devoting state funds to the printing of a record of their proceedings. The first convention preserved no record of its debates, while the official journal comprises a modest volume of 500 pages.” The Convention of 1846, at 5 (M. Quaife ed. 1919). Quaife made a “painstaking effort . . . to reconstruct the debates and to assemble the other pertinent records pertaining to the birth of our commonwealth. . . .” Id. at 6. He reconstructed the debates “for the
Quaife‘s research partially fills out the November 4, 1846 debate on sec. 5. Quaife reports that on that day:
The fifth section, which reads in the original: “The legislature shall make no law abridging the freedom of speech or the right of the people peaceably to assemble and to petition for a redress of grievances,” was very generally objected to as too indefinite. Several substitutes were proposed, and one, offered by Mr. Lovell, after being amended by Marshall M. Strong, was adopted.
Id. at 365. Quaife does not set forth Lovell‘s substitute. Our search of the records of the State Historical Society failed to reveal it.10 It is fair to infer, however, from the absence of other references in the 1846 Journal or by Quaife to sec. 5 of the proposed bill of rights, that Lovell‘s substitute became art. XVI, sec. 3, of the Bill of Rights in the rejected 1846 constitution, the first sentence of which is repeated in
Lovell‘s substitute for the original sec. 5 of the proposed bill of rights made the free speech provision more definite by expanding it. The substitute expanded the original proposal by including an affirmative statement that every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, prohibiting a restraint as well as abridgement, and embracing liberty of the press as well as liberty of speech.
Since nothing in the 1846 or 1848 constitutional debates is inconsistent with the presumption that
Because no showing has been made to justify the proposition that the free speech provisions in
Having come to my conclusions after following the analysis required by the Wisconsin Supreme Court for interpretation of our state constitution, I need not examine the decisions of other state appellate courts regarding the free speech provisions in their constitutions. My conclusion is, however, consistent with those
Notes
Taking them in the order of publication, Story‘s books upon the Constitution, upon conflict of laws and upon equity have had special influence. If Marshall made our public law, Story authoritatively expounded it. The influence of his book is to be traced through Cooley into nearly all the texts of the last part of the nineteenth century. . . .
Pound, The Place of Judge Story in the Making of American Law, 48 Am. L. Rev. 676, 694 (1914). James Kent, author of Commentaries on American Law (New York 1826), described Story‘s Commentaries as a “most profound, learned, acute, and excellent production, distinguished for its accuracy, fulness, and judgment.”
Chief Justice John Marshall wished that Story‘s work “could be read by every statesman, and every would-be statesman in the United States.” See Letters from James Kent and Chief Justice Marshall to Joseph Story, in 2 Life and Letters of Joseph Story 134-35 (W. Story ed. 1851).
A Bloomfield Hills survey conducted in October 1982 in the Hartford, Connecticut area reported that if a special interest group were to solicit signatures on a petition within a shopping mall, about 22% of the respondents would be “very likely” or “somewhat likely” to spend less time and money in the mall, and 43.5% indicated they would be “very likely” or “somewhat likely” to avoid the areas of the mall where the solicitation was taking place.
Day is not a party to this action. In declining to enforce the temporary injunction against Day, the court suggested that a separate action be commenced against him. Appellants subsequently did so.