More re Limits to Defiant Trespass Validity

NewsLanc received the following letter from its counsel further exploring the implications of Franklin & Marshall serving Ron Harper, Jr., News Editor of the Lancaster Post with a Defiant Trespass notice and advising him not to step foot on F&M's campus or the college owned estate 2/3rds of a mile away in which its president John Fry resides:


June 17, 2008

Robert E. Field
NewsLanc.com
1377-C Spencer Avenue
Lancaster, PA 17603

Re: Franklin & Marshall Defiant Trespass Questions

Dear Mr. Field:

You asked that we review and provide information to you on the activities of Franklin & Marshall with respect to issuing defiant trespass letters. You have presented the following questions to us:

1. Whether the college grounds are to be open for transit by use of the public;
2. Whether a higher standard is required for defiant trespass for a member of the media; and,
3. How one challenges a defiant trespass notice.

I will address each question in turn.

Underlying the entire issue with Franklin & Marshall is a balancing of the interests of Franklin & Marshall with citizens to whom the property would appear to be opened. The answer to the inquiry would depend on how Franklin & Marshall has permitted the public to access the campus. If the public is freely walking across the campus from east to west using its facilities, using the college for public events or attending events open to the public or events presented on behalf of the community, then an individual who has received a no trespass letter may not be treated differently than the rest of the public when accessing these public areas. (See Com. v. Tate, 459 Pa. 158, 173-174 (1981)).

The Pennsylvania Supreme Court has made clear in Commonwealth v. Tate, that it is repugnant to the Pennsylvania Constitution for an educational institution that holds itself out to the public as a community resource and allows members of the public to walk on its campus, to at the same time, arbitrarily deny a few members of the public a right to peaceable, protected First Amendment activity on the same property. Commonwealth v. Tate remains good law in Pennsylvania and has been favorably cited by the Pennsylvania Supreme Court since its publication as well as various federal courts See e.g., Radich v. Good, 886 F2d.1391(3rd Cir. 1989) (private college can in certain circumstances create a limited public forum based on past activities. However, mere access by the public does not necessarily always create a public forum for First Amendment activity on private property), Fraizer v. Nationwide Mutual Insurance Company 135 F. Supp.2d 623(E.D.Pa. 2001), Conner v. Clinton County Prison, 963 F. Supp. 442 (M.D.Pa. 1997)

The resolution of how the college may treat its grounds will necessarily turn on the college's history in allowing access to these parts of the college. If one is to go to the college to engage in the exercise of a Constitutional right, such as distributing handbills, the college must have opened itself up for such activity to occur on the property of the college. In Tate, the college had a symposium to which various members of the community were invited. This circumstance was the basis of the court’s finding that a public forum had been created. Accordingly, Tate should not be read as an open invitation to allow anyone to access the college property to engage in First Amendment activity. That being said, the same analysis should protect individuals who have received defiant trespass letters when engaging in lawful activities that others of the public are invited to engage in at the college, on the college property or in buildings owned by tenants of the college.

Your second question deals with whether there is a higher standard of defiant trespass notice for members of the media. There is not a separate standard for members of the media as it applies to defiant trespass notices. The issue ties in with your third question as to how one challenges a defiant trespass notice.

It is simple for one to issue a no trespass notice to an individual. However, in the enforcement of a defiant trespass notice comes the danger to the enforcer of possibly engaging in a Constitutional violation. Because of Tate’s 25 year history, there can be no defense that a police officer was unaware of the constitutional rights at stake in inappropriately enforcing a defiant trespass order.

A private entity needs no reason to prevent someone from accessing his or her property. One would think that business owners would be reticent to engage in sending out defiant trespass letters, as it would negatively impact their business and create heightened costs in screening individuals at an entrance, for example to prevent them from entering the establishment. Furthermore, if an individual enters a place that is open to the public and to which the public is invited, in order to be arrested for defiant trespass, there must be some allegation or proof that the individual is not obeying another law or is engaged in unlawful activity. If the entity attempts to enforce the defiant trespass letter against one who is acting legally and in an area open to the public, that entity would run the risk of using police action without any supporting probable cause resulting in a violation of the Fourth and possibly Fourteenth Amendment, as well as the First Amendment should it implicate freedom of speech issues that the college has invited individuals to engage in based on prior practices.

A challenge to a no trespass letter would come when the entity attempts to enforce the defiant trespass notice. In the right situation, an individual could file for an injunction to prevent the enforcement of defiant trespass notices if it is clear that the entity means to enforce the notice against an individual acting lawfully and not encroaching on areas that are closed to the public. Franklin & Marshall may have come close to crossing this line but without further analysis of their position and statement(s), I am not able to finalize an opinion on that issue.

Thank you for giving us the opportunity to review this situation. If I can provide you with any additional information or answer any questions that are raised by this letter please feel free to contact me.