Stahl v. State

STAHL, Collard, William A. Ronald Earl Monks, Kelly,

and Michael D. Vicki Jean Bernstein, Raymond Emer-

Ben Mark McDaniel,

son, P. Eli W. Nixon David Wolfson, Appellants,

and Steve Oklahoma, Appellee.

The STATE of M-80-326,

Nos. M-80-377 M-80-328. Appeals of Oklahoma.

Court of Criminal

June 1983. July

As Corrected 1983. Nelson, Davis, Andrews, J.Roy

Robert D. Murrah, Bixler, Davis, Milsten & Legg, Stahl, Kelly. Collard and appellants, Tulsa, Hager, Robert for appellant Vicki Monks. Bullock, Sobel,

Louis W. Moran, Bullock Stevens, Tulsa, & for appellants Bernstein, Emerson, McDaniel, Nixon and Wolfson. Landau, Jack C. Sharon P. Mahoney, Cle- Work, mens D.C., P. Washington, James P. Kelley, City, for amicus. Jan Eric Cartwright, Gen., Atty. State of Okl., Lee, Gen., David W. Atty. Asst. Okla- homa City, for appellee.

OPINION CORNISH, Judge: convict- are nine Appellants after Trespass trial of non-jury ed in a Forbidden, of 21 O.S. in violation Being Each was fined $25.00. pivotal appeal issue in this is whether damage or shall be deemed guilty of a the First Amendment shields upon misdemeanor and conviction thereof prosecution state criminal in their any shall be fined in sum not less than news gathering function. We hold that it Fifty ($50.00) Dollars nor more than Five does not. ($500.00), Hundred Dollars or by confine- jail ment in the county for not less than 2,206 Black Fox is a acre tract of Station thirty (30) days nor more than six Oklahoma, land in Rogers County, owned months, or both such fine and imprison- by the Public of Company Service Oklaho- ment. ma (PSO), an corporation. cooperatives, two rural electric Associ- rea, Regarding requisite mens Cooperative, (Associated) ated Electric Inc. word “willfully” defined as follows: Cooperative and Western Farmers Electric “willfully” The term when applied (Western), agreed develop nuclear intent with which an act is done or omit- generating facilities on the site. ini- Some ted, implies simply purpose willing- a or work tial excavation and construction ness to commit the act or the omission under a limited work authoriza- commenced referred to. It does require any in- by Regulatory tion issued the Nuclear Com- law, another, injure tent to violate or to mission. or to acquire any advantage. On June members of the Sunbelt O.S.1981, Title 21 92. It is thus manifest §

Alliance, goal whose it was to group a dis- appellants that need not have intended to play their nucle- opposition proposed any injure violate laws or the landowner in occupied grounds ar at Black facility, order to have committed trespass. More- appellant newspersons Fox. The crossed over, apparent it is that actual damage is despite the fence with the protestors, not an element of the offense under the intention to have previously announced part 1835(a). first Trespass resulting § arrested, such persons despite signs waste, theft or damage sepa- is treated posted loudspeaker on the fence and warn- rately proviso, subject and is to a ings. All 339 and the nine demonstrators greater range punishment. appellants were arrested and booked Appellants contend that these convictions Rogers County sheriff. are in violation of the First and Fourteenth argued appellants that lacked the Amendments to the United States Constitu- requisite criminal intent since entered claim, showing tion. To sustain such a news, only gather the land not to violate action, federal, state or is nec- rights or engage of the landowners essary. argued other unlawful behavior. It is also We do not agree dissenting col- to have ac- appellants must be shown league that the validity these convictions tually damage caused to a real significant under the proper- Oklahoma Constitution is interest, peace or a breach of the ly Any before this Court. such claim has to be guilty trespass. offense Only been waived in the briefs. one of the O.S.1981, 1835(a) Title 21 provides: nine makes any contention Whoever willfully maliciously shall or en- regard, and that the obscure state- garden, ter the or enclosed field of yard, ment that violate the convictions First being expressly another after forbidden cognate provisions Amendment “and the to do so the owner or thereof occupant Reply Oklahoma Constitution”. Brief shall be guilty deemed Monks, Appellant p. Appellants’ upon conviction thereof shall be fined in authority statement of the issue and the any Twenty-five sum not to exceed Dol- upon grounded solely relied are on the First ($25.00); lars who provided, anyone Amendment. willfully enters maliciously such However, garden, field, the dissent does not differenti- yard, or and therein com- waste, theft, mits or to commit attempts protec- ate under the facts of this case the provided by tions the Oklahoma Constitu- normally involved an escort for the visitor tion from those provided by First grounds. while on the Those violating the Rather, rights guarded Amendment. policy by entering the property through the co-extensive, are treated with First subject fence were to arrest. Thus, Amendment caselaw controlling. The policy was based on the need to avoid difference in results is not due to analysis harm to visitors due to ditches and holes on under one constitutional provision instead property and the roads. There was also of the other. posed the danger by heavy equipment uti- The trial court found that a sufficiently lized in construction activity the site. close nexus existed between the actions of An additional factor leading to this policy PSO and the state and governments federal was the need to avoid vandalism to the site to fairly treat the actions of as the PSO and to the heavy equipment kept therein. actions of government itself. See Jackson Although there is evidence that v. Metropolitan 345, Edison 419 U.S. 95 overall press arrangements PSO for the 449, 42 (1974). S.Ct. L.Ed.2d 477 The trial June part event were based in on a desire to court further found that partners PSO’s minimize the effectiveness of the demon project, Western, Associated and stration these newspersons were arrested instrumentalities govern of the federal for crossing the fence and entering the ment, and that PSO acted on behalf of the grounds in violation of a policy supported partners. See, Alabama Company Power v. by valid considerations. Governmental en Inc., Alabama Electric Cooperative, 394 tities are empowered regulate to (5th Cir.1978), den., F.2d 672 cert. 393 U.S. under their preserve control in order to 1000, 488, 465, (rural 89 21 S.Ct. L.Ed.2d property for the use to which it is lawfully electric cooperatives are federal instrumen- Spock, 828, dedicated. Greer v. 424 U.S. laws). see, talities under the anti-trust But 838, 1211, 1217, 96 47 S.Ct. L.Ed.2d 505 Paris, City of v. Kentucky Federal Power (1976); Adderly Florida, 39, v. 385 U.S. 87 Commission, 399 (D.C.Cir.1968) F.2d 983 242, (1966). 17 149 The basic (rural cooperatives electric are not federal function of the Black Fox Station was to instrumentalities under the federal power house nuclear power generating facilities. act). In to efficaciously order administer The State does not challenge these find- property, needed to regulate en ings. unnecessary for us to determine trance facility. of visitors to the whether state action is present each of these forms since the constitutional claim is The First Amendment does not unavailing on its merits. Appellants urge newspersons liability shield for torts they have been denied their constitu- and crimes committed in the course of gather tional the news. They ar- Onassis, news-gathering. See Galella v. 487 gue that had constitutional (2nd Cir.1973); F.2d 986 Dietemann v. cross the fence and accompany prote- Time, Inc., (9th Cir.1971); 449 F.2d 245 An stors in order to cover the adequately event WROC-TV, derson v. 109 Misc.2d 441 absent a sufficient state in- countervailing Brosamle, Prahl v. 98 N.Y.S.2d terest. (1980). Wis.2d In 295 N.W.2d 768 Le Mistral, Broadcasting, Inc. v. Columbia grounds On June of Black (1978), A.D.2d N.Y.S.2d Fox were public, closed to both law: applicable court reviewed except designated for a public viewing area (PVA) Time, Inc., near the center of the site. v. 449 F.2d Dietemann general policy (9th Cir.1971), was that persons desiring it was observed that visit the site must enter at one the gates. First Amendment has never been ‘[t]he The visitor could then immuni- proceed directly construed to accord PVA, request permission ty during to visit from torts or crimes committed other portions permission newsgathering. site. Such The First course is not a license to policy cient considerations. judgments Amendment ’ Similarly, ... Circuit Court Second and sentences are AFFIRMED. Onassis, v. Appeals in Galella 487 F.2d 986, 995-996, stated: BUSSEY, P.J., concurs. ‘Crimes and torts committed in news gathering are not Branz protected. See BRETT, J., dissents. 665, 92 burg Hayes, (1972);. L.Ed.2d 626 Rosenbloom Me BRETT, Judge: tromedia, respectfully dissent to this decision. Time, Dietemann v. M-80-326, in Case No. Inc., (9th Cir.1971). F.2d 249-250 Stahl, al., et (Consolidated Cases CRM-79- See RESTATEMENT OF 2d TORTS 407, 512, 635), No. Case M-80-328 Bern- 652(f), (Tent. comment K Draft No. stein, al., et (Consolidated 1967). There to a is no threat free Cases CRM-79- 407, 437, 540, 373, 512, 547, 561, 635, and requiring agents its to act 681 within the M-80-377, Monks, al., law.” and Case No. et (Consolidated 407, CRM-79-373, 437, Cases Further, the First Amendment 540, 512, 547, 561, 681), 635 and are nine guarantee does not constitution newspersons who were convicted of mis- special al access not available to the demeanor offense Trespassing After Be- public generally. Branzburg v. 408 Hayes, Forbidden, ing O.S.1971, in violation of 21 665, 684, 2646, 2658, U.S. 92 S.Ct. 33 L.Ed.2d 1835, in the Inc., District Court KQED, Rogers Houchins v. 1, 2588, U.S. (1977) County 98 S.Ct. 57 L.Ed.2d 553 before the Honorable David Allen C.J.; Stewart, (Burger, J., and concurring Box, jury. without a The nine cases were Procunier, judgment); Pell 417 consolidated for trial and appellant each U.S. ($25) a twenty-five received dollar fine. (1974). Moreover, this is not a is this for conviction criminal trespass traditional forum such as public the nine herein appeal. streets, sidewalks, parks, there The criminal statute question no guarantee constitutional of access: provides: guaran- First Amendment does not [T]he willfully Whoever shall or maliciously en- tee to property simply because it is garden, ter the yard, enclosed field of owned or the government. controlled being another after expressly forbidden v. Spock, Greer 96 S.Ct. to sodo the owner or occupant thereof (1976), 47 L.Ed.2d 505 the Court shall deemed guilty trespass and approvingly cited from its earlier opinion upon conviction thereof shall be fined in Florida, in Adderley v. sum Twenty-five to exceed 17 L.Ed.2d 149 wherein ($25.00) dollars. State, it explained that ‘The no than less a private property, owner of has power appellants argued below appeal-

preserve the property under its control ed to this Court that their convictions under use to which it is lawfully dedicat- statute violated First and Four- ed.’ 424 96 S.Ct. teenth Amendment of the U.S. Constitution 1216, 47 L.Ed.2d 505. II, and Article of the Sec. Oklahoma U.S. Postal Service Council of Green by abridging Constitution of ac- Associations, burgh Civic cess freedom press. of the Mindful of 129-130, 101 S.Ct. guarantee the federal the appellants’ (1981). press rights, unnecessary it ad- to decide case believe

Appellants were to a dress it this because I subjected rule access applying convictions, to both under appellants’ criminal alike. This rule supported by case, suffi- the facts and circumstances of this guarantee punish violate the of freedom of the used to newspersons for peacefully press as found in our state constitution.1 entering upon .quasi-public property during a political demonstration in to bring order This case arose when the Alli- Sunbelt newsworthy events occurring prop- on that ance, organization, planned an anti-nuclear erty public’s attention. Central 2,1979, a demonstration for June protest is, question this if our criminal the construction of the Public Co. of Service used, statute can be so under what condi- Oklahoma’s Black Pox Station Nuclear tions constitutionally exer- Plant, -Rogers Power located in County, cise and were (hereinafter these conditions PSO). The Black met under prior Pox had been the scene of a the circumstances of this case? Station protest in of 1978. Surprisingly, October this precise issue has not been However, litigated. because impor- Because PSO offices were dissatisfied tance of this issue and the inevitability of October, 1978, press coverage reoccurrence, its considering today’s era of protest, they provisions made to handle increasing political activities with interest- press coverage protest by of the June 2nd groups conducting ed unauthorized demon- designating persons that news media would stration on property, be confined to a area public viewing located disagree with the manner in my which col- proposed inside the nuclear site. The Black leagues solve the constitutional 2,220 questions Fox site covers acres and the desig- presented as relate to a free To press. nated area was located on a 2½ acre near plot the center of the site. Prior to resolve this I believe two questions site, designating press neither nor (1) PSO must be whether answered: the of appellants the knew where the demonstra- press go quasi-public the on tions would occur the on site. cover an ongoing political demonstration is in technical violation of our criminal tres- demonstration, the morning On statute, (2) pass whether enforcement demonstrators, building of the protest of against our criminal statute proposed plant, perime- nuclear crossed the newspersons under the circumstances of ter fence property occupied and entered the this case is foreclosed the free appellant newspersons PSO. The nine also crossed the clause of our constitution. fence and followed the report demonstrators to observe and the I begin my analysis by acknowledging events that transpired. newspersons The adopting all of the trial findings court’s violated rule that the would PSO’s be of fact and conclusions of law. These are: permitted only public viewing area. (1) The at property located Black Pox The demonstrators and the newspersons Station is an enclosed field within were at met the site sheriffs in mobile meaning of the Oklahoma Crimi- booking vans who warned them to halt or Trespass nal Statute. be arrested. The appellants ignored the (2) The at the Black Fox PSO warning and were arrested for unlawful actions 2,1979, on June to which the Station The entry. newspersons entered the site objected, appellants herein are con- purpose covering for the avowed purposes sidered action for public. They demonstration for the did not under the First and Four- analysis demonstrate, nor interfere with con- PSO’s teenth Amendment of the U.S. Con- activities, struction nor cause harm to any II, stitution and Article subsections plant. They nuclear also did not inter- 2, 7, and 22 of the Oklahoma Consti- policemen’s booking fere with the and ar- tution. protestors. rests of the (3) significant public controversy The major question appeal The on is whether concerning power can whether a nuclear the State’s criminal statute liberty speech press.” pertinent part, provides or of the Okl. Const. 1. In that Article “No II, passed abridge Art. 22. law shall be to restrain or and operated should be built at plant (9)Some the appellants em- published Fox pro- ployers Black and the June news stories about 2,1979, demonstration, June test construction of said facilities video included and/or verbal descrip- newsworthy events. of, among things, tions other (4) on orderly peaceful Based protestors’ initial encounter with the conduct of at the Octo- sheriffs and the arrests. ber, 1978, political at protest Black (10) There were no unusual hazards to Fox, PSO had no reason to believe appellants’ safety the Black newspersons would interfere with Fox on June site 1979. do any the demonstrators or harm to (11) did not appellants interfere with the Black Fox at the Station June 2 activity construction or cause protest. any physical harm to the Black Fox (5) had been unhappy on June Station October, 1978, coverage of the pro- (12) The did not interfere with test and wished to limit cover- booking procedure or the sher- age protest June protestors iff’s arrests on June specific which those events could be 2, 1979. from perimeter viewed outside the (13) The appellants crossed fenced designated fence and from boundary line at Black Fox Station viewing area inside the fence. solely protest to cover the as new- purpose limiting such press not to spersons, demonstrate prevent protestors nuclear plans to PSO’s “collecting publicity” based on build a nuclear Black facility at Fox. belief the demonstration (14) Based on decisions of the United did not deserve kind of impor- Supreme Court, States lower Federal or legitimacy tance that debate and courts, and the Oklahoma give coverage it. would Ac- law, Court, a matter there is a cordingly, to sought prevent First Amendment of the right news interviewing media to reasonable access to the demonstrators and from taking pub- news such as is available up” “close and “battle shots” of the generally. lic The press, engaged in marchers. process of gathering to" crossing boundary fence, Prior distribution, information for appellants posted signs observed protection claim constitutional entry which warned them that with- for its actions. out was under permission penalty of Based on background findings of fence, After crossing law. ap- law, fact and conclusions of my inquiry first pellants failed to an heed official is whether appellants in technical vio announcement were on trespass lation of the criminal statute. Our subject property and to ar- statute has been not construed con rest. reporters quasi- text of who enter passively (8) Only appellant newspersons who in newsgathering the perimeter crossed fence with the function remain on the property after demonstrators could observe the However, being requested to leave. protestors’ first encounter with the criminal statute has trespass been construed sheriff and the arrest first since as it trespassing persons relates to of the events Rainbolt, these could not observed public generally. Lambert v. 207 451, from outside the fence perimeter or Okl. 459 (Okl.1952); 250 P.2d Farmer v. designated public State, (Okl.Cr.1973); from the' viewing 508 P.2d 1114 Guindon State, (Okl.Cr.1981). area. v. 627 P.2d 449

845 cases, it follows that the es- No From these exercised. one can deny long sential of a of- right element criminal established the Unit- being fense is failure to or leave after gather halt ed to States disseminate news to do so the owner or occu- requested concerning every phase and information bar, pant. appellant In the case at together of human activity, with the inci- newspersons failed to heed several warn- dents pertaining [right] thereto. This ings that their continued on the presence potent makes the the most servant Black Fox site would in their arrest. result people protecting all rights I must thus conclude their intrusion against fraud, acts of tyranny, and cor- unwarranted, illegal trespass constituted an ruption, prolific as well as a most medium and violated the statute. of information and education. We are of opinion speech freedom Having decided that violated press is not a discriminate but the right statute, my criminal second equal right newsgathering and dissem- inquiry is whether enforcement of the stat- inating agencies, subject to the restric- ute against newspersons, under the circum- abuse, against injurious tions use to stances of this violated the free public rights individuals or and welfare. clause our State constitution. haveWe Id. at 739. had many interpret occasions to our consti- press, tution’s free clause as speech In pertinent addition to these state court statutes and ordinances city cited, decisions the United States which In sought to restrict these freedoms. right Court has addressed the issue of three of the first eases to come before this newsworthy light access to events in Court, constitutionality we addressed the Rush, v. 381 significant cases. Zemel city pamphleteering ordinances that forbid 1, 1271, 179, 14 reh’g. U.S. 85 L.Ed.2d S.Ct. Walrod, Ex Parte 79 public streets. denied, 873, 17, 15 86 S.Ct. 299, 1941); (Oki.Cr. Oki.Cr. 120 P.2d 783 Ex (1965); Branzburg Hayes, 114 Winnett, Parte 73 Oki.Cr. 121 P.2d 312 665, (1972); 33 L.Ed.2d 626 92 S.Ct. (Okl.Cr.1942); Emch City Guymon, Procunier, Pell v. U.S. S.Ct. (Okl.Cr.1942). 127 P.2d 855 Okl.Cr. 2800, 41 (1974); v. Wash Saxbe “ we ‘Freedom of these cases stated that: Co., ington Post U.S. constitutions, press’ guaranteed by (1974); Publish 41 L.Ed.2d 514 contemplates Federal and ... ing Co. v. District Court of Oklahoma Coun also the only print, but 51 L.Ed.2d ty, 430 U.S. municipalities distribute. The Inc., KQED, Houchin v. the interest of regulations enact 57 L.Ed.2d 553 convenience, safety, health and welfare or Pasquale, De Gannett Inc. v. employed abridge not be so as to the 99 S.Ct. by individual liberties secured the constitu Virginia, Inc. v. Newspapers, Richmond write, print who to speak, tion to those wish 65 L.Ed.2d opinion.” or circulate information or (1980). interpreted further our free

This Court these federal cases are While none of in speech, provision free constitutional press case, in the instant factually analogous to State, (Okl.Cr.1958), Lyles v. 330 P.2d 734 the use that none them involved State’s of when we a trial court’s decision to upheld deny press statute to of a criminal permit television cameras in the courtroom in access, helping the cases are instructive speaking a criminal trial. of free during case because of the us decide the instant case, in we press, speech rights free that reaching in the court used method stated: conflicting inter- To resolve the decisions. court in each the presented ests [right] belongs every person.

This Un- First constitution, value of the asserted [right] may weighed the the der objective the of rights against improperly as it is not Amendment freely long used so the that government conduct limited Lightfoot, the 81 S.Ct. right. court the recognized Alabama, value of a L.Ed.2d 110 NAACP free in a press society democratic and reaf- 2 L.Ed.2d 1488 (1958). press firmed the belief that access to news- public events ensured the

worthy would this of constitu- backdrop of ideas where marketplace have a “free tional principles and weighing standards debate on issues would be uninhibit- the “delicate perform proceed I nbw that New York open.” and ed, wide robust the circum- weighing task of and difficult” Sullivan, Times Co. 84 S.Ct. stances apprising the substantiality of (1964). the by reasons advanced the State deter- mining press’ right read in all the of under When I context the the decided United circumstances this case. by access cases States Court, Supreme I find hold that any I begin by addressing appellant’s argu- government access claim to informa- ment that open fields at the proposed tion subject to a of restraint degree dic- nuclear site was considered a traditional forum, tated the kind of the nature subject First Amendment forum and only sought information countervail- time, place reasonable manner re- ing governmental interests. The claims are not agree. pub- strictions. I do Traditional analyzed by balancing these three factors. lic parks, forums as streets and sidewalks are exclusively publicly Our have owned and opinions sup- State court followed ported. Black Fox not analysis. Although this same we are Station was imbued not type PSO, bound Supreme United States Court character. station, majority decisions in owner was a interpreting, scope of our clause, corporation with a State I substantial financial in- Constitution find ground project. government no following tenable vestment for guidelines subsidies infused in the balancing program laid down the Unit- more promotional the nature ed incentives than States Court cases cited. Ac- proprietary denoting acts cordingly, pub- would hold that our incidents State Con- lic find, I am ownership. bound to how- protection stitution gives rights for ever, that Black Fox’s open fields had a reasonable access to gather conclude, quasi-public character and as did right, restraint on this includ- court, the trial that PSO’s actions there ing but not limited to enforcement of a would be held to be pur- State action for statute, requires criminal poses analysis. Amendment We First a relatively greater show considera- find State action exists not because the only tion that must be exercised station received extensive sub- A these balancing interest. opposing sidies but also because it monopoly had interests is thus mandated. status, State, heavily regulated by In determining the standard used to minority and the owners were instrumen- involved, weigh the interests Courts have talities of the United States. the purpose considered and motive behind Fox’s Having open decided Black If, in a abridging particular action. qualify fields do not stringent case, it is found that the purpose behind the time, weighing place, standards of is not legitimate, action and is de- regulations, manner I turn then to the oth- signed solely to penalize, control or limit er on weighing standard which is based the speech rights, or press the must show State practical justifications historical each and justification substantial their for actions be- presents support side their In position. fore the restriction upheld. will be See test, using balancing this the total circum- Grosjeon v. American Press stances considered. must be S.Ct. 80 L.Ed. 660 Louisiana, Brown is the press’s On the side the scale 719, 15 newsgathering right Gomillion v. media’s to reasonable newsworthy access to events. is police This valid exercise of their powers. That protected. It constitutionally premised State, the under police powers, the significance the of a for the press maintain order and protect property inter- political maintenance system. See ests, general is not denied as a statement. Richmond, Gannett, Saxbe, Branzburg, and accomplishing objectives, But in these do Houchin, It is an supra. uncontroverted police the so powers State’s extend far as to part fact that the news media is an integral totally restrict subvert press or access to a by of our system national communication newsworthy event? The determination of which public the obtains information that question begins with the observation form judgments poli- about national that usual presumption favoring the statu- constitutionally recog- tics. The has a press tory validity against is not operative re- educate, nized role and criti- to inform offer pre-eminent strictions freedoms secured cism a provide public and forum for discus- by our Constitution and the First State sion and debate. Amendment the Constitution. In a First Amendment assessing These are given priority liberties a that claim, use the test of qualifying we does not dubious permit intrusion. Accord- looking practice, at specific historical the ingly, attempt them restrict must be structural value claim in the circum- a justified by public clear interest that stances and the kind of information the presently activity sought threatened the seeks as interests State to be regulated. Sullivan, invaded. York New Times Co. v. claims the public threatened 720; at at supra, 376 U.S. this public interest ease was that of Richmond, (Mar- at supra, safety. argues that the demonstrators’ shall, Brennan, concurring.) J. J. presented mass act civil disobedience assessing access claim in this of a hostile possibility and violent confron- important First, I make three observations: tation with unknown consequences. This the nuclear Black power demonstration at justification may have proper been a consid- Fox newsworthy was a event and media eration for 300 demonstrators that was at coverage very of it core of the public peace threatened the with their un- protection Amend- afforded First justification march. Second, ment. authorized But this press access to news- this worthy event was not because be scarcely applicable reasonable could nine the press designated was a area to who specific peacefully came and left be on the before the site demonstration with demonstrators were not in- began when it could not have been known anything gathering volved in other than the where the place. demonstration would take political of the news. The demonstration at prior This kind of restraint been has Black a‘‘sceneof a Fox was not classified deemed to And presumptively invalid. understandably crime or other disaster’’that third, press sought the information the was for would warrant exclusion of about the operation safety security reasons. The record does type of information the had public the news- the contention that support deserved to know.2 endangered. persons’ physical safety was Quite court contrary, specifi- the trial scale, they side of the On State’s dangers cally found there were no justify enforcing the criminal stat- the site and the demonstration anyone on (1) ute against newsmen two reasons: peaceful orderly. It could be ar- proper- to maintain to protect order presence press, ty urges recog- gued interests. The us to utility nize as a full public accountability, their actions dimin- assuring Richmond, supra, (Black- justice general 100 S.Ct. at 2842 tion . about the .. con- mun, J., concurring) servants, and all actors duct of other judicial a de- arena. has an intense need and right to know served about the administra- ished the of a violent possibility confronta I next the justification consider State’s tion and assured that very possibly every for their action that of protecting as Moreover, thing peaceful. remained the property rights. Protecting an property in United Court has held that Supreme States orderly society highest is of importance. speculation “mere harm does not consti But in this the trial court’s finding tute a interest.” compelling Consoli support fact did not the view that PSO’s New York v. dated Edison Co. of Public property imperiled interests were by the 530, 542, Service U.S. newspersons. trial court found that 2326, 2336, (1980). 65 L.Ed.2d PSO had no believe and they reason did I argument next address the State’s that not believe that at was reasonable not denied June 2 would do any demonstration harm because, assessment, in their the events site or of their damage facilities. that transpired prior demonstrators’ this belief secure in based on the arrest special newsworthy signifi had no press's orderly peaceful actions at the cance. The on this issue State’s conclusion political demonstration held on the site is constitutionally impermissible. No court October, 1978. Based on those uncontro- can government official make the deter facts, verted I justi- do not find the State’s significant mination of what is a news fying reason protecting property inter- worthy event. Justice Burger, Chief writ ests a persuasive argument. It is not also ing in Miami Publishing Herald Co. v. Tor supported findings court’s by the trial own nillo, 241, 258, 2831, 2839, of fact. 41 L.Ed.2d stated: that private person do not intimate a into go choice of material a news- his on property rights be secure in

paper and the made as to ... decision his But the property. property in- of public content and treatment issues terest a sought protected to be here had fair or un- officials —whether quasi-public Property exercise character. interests fair —constitute the of editorial yet control and It to be judgment. quasi-public are not absolute. governmental regula- demonstrated how These interests must be exercised for the process tion of can this crucial be exer- not, convenience of all must in the guarantees cised with First Amendment guise regulation, totally abridge free of a have they free evolved to Cio, speech press rights. Hague and free this time. 83 L.Ed. 1423 Broadcasting See System, (1939). also Columbia Committee, Inc. v. Democratic National And finally, I address the motive and 124-125, 93 S.Ct. purpose behind the State’s abridging action. 772, (1973) where the court held The trial specifically court found that PSO’s editors, newspapers, broadcasters reasons for limiting coverage was for have power to select and choose news the illegitimate controlling purpose opinion material. I am kind story of news would later people themselves the final masters are distribute to public. The trial court what since they news consume have that such commendably decided action was the most effective to make that choice tools objectionable, ignorable, incompatible through reading, selective listening and rights people. of a But after T.V. viewing. Government officials do not assessment, correctly making the trial have the function censoring court regrettably place proper failed republic if there society even were no First weight objectionable on this action. The Amendment. I sanction James Madison’s United Court has consist- States view that “censorial is in the people ently regulation, held that no even under government,

over and not time, restrictions, place can be and manner people.” over the 4 Annals of Congress (1794). expression. based on the content of the

849 is government well settled that the cannot 1351 (Okl.1980), where the State prohibit Court merely power communication because stated: “Police must be exer- public cised in the disapprove speaker’s scrupulous views. interest with 268, private concern for Maryland, rights guaranteed Niemotko 340 71 by v. U.S. Constitution. not be for (1951); Carey S.Ct. 95 L.Ed. 267 v. utilized the benefit of a I company.” agree Brown, 447 100 65 S.Ct. of the must pro- State be Estelle, (1980); Garrett v. 424 it tected but must not be abused. P.Supp. (N.D.Tex.1977); McHealthy City Board Education Doyle, v. I thoroughly justifi- have considered (1977); L.Ed.2d 471 by the their given cations inhibit- Education, Pickering v. Board of ing and justifi- actions conclude that these L.Ed.2d 811 by cations are not outweighed press’s Arkansas, Epperson claim reasonable to the access news- Grosjean v. worthy event in this I circumstance. would justifications American also find that supra, (1936). Press State’s are not supported findings trial court’s In the did not instant trial court I would fact. further find that give improper motives the critical of press State’s denial access in this case under consti- scrutiny demanded our state illegitimate was for the purpose of control- accepted tutional free clause or press under ling legitimate the news thus no state first principles. amendment Given PSO’s being interest was served. attempt press deliberate limit access sum, I believe that the restrictions on disapproval message based on their the press enforcing trespass the criminal the media convey would to the statute under newsmen the cir- PSO’s use of the criminal statute trespass of this case cumstances was destructive of to accomplish goal, their I would hold the gather of a press news State has not a inter- presented legitimate a greater, when the State did not have est not inhibiting for their actions. I would or legitimate substantial interest to be permit our criminal statute to be served. I would hold that this action used and in illegitimately this manner with the free free- incompatible order to prevent knowing from II, doms as secured 22 of Article Section quasi- what their doing on our I Accordingly, State Constitution. be- It is to me public property. inconceivable prosecutions lieve the appellant news- that a conclusion could sanc- contrary be persons unjustified judgment society. tioned in our democratic trial court should Reversed. I do not that the an abso- say press has Therefore, I dissent to this decision. lute gather to go property to news. hold that criminal only would cannot arbitrarily statute be used unreasonably to exclude the constitutionally protected gath- news

ering public property role on when the State does a or im- present legitimate MAYTUBBY, Mary Appellant, Ann portant countervailing interest. time, subject place remains reasonable Oklahoma, Appellee. The STATE exercising manner restrictions when its No. M-82-709. role in First gathering traditional subject Amendment forums and of Oklahoma. Appeals Court of Criminal mak- weighing tests discussed herein when June ing claim to non-traditional public forums. I would reaffirm the hold-

ing Liquor Co. v. Alco- Central Board, P.2d Beverage

holic and Control

Case Details

Case Name: Stahl v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jul 22, 1983

Citation: 665 P.2d 839

Docket Number: M-80-326, M-80-377 and M-80-328

Court Abbreviation: Okla. Crim. App.