Tuesday, August 15, 2006

Freedom of Speech Does Apply to “Private Property”

(The following letter is from Scotty at Living Waters)

While there is no question of our Constitutional right to freedom of speech and handing out tracts in traditional public forums such as parks, public squares and the street; I recently had an incident happen to me which made me aware of access to locations I had previously thought to be off limits.

While leaving Home Depot, as I was loading my car, I noticed some people sitting at a table by a hot dog stand. I grabbed some tracts and went over and handed them out. The parking lot security guard was also there and immediately challenged me. He said I could not pass out any literature on the premises because it was “private property”. I said I was not soliciting, and it was my constitutional right to do so. As I headed back to my car, he blocked my car in with his cart and proceeded to threaten me with arrest if I tried to do it again. We warmly conversed on the subject, but I started to get upset at the threats of arrest and felt as though I was being pressed to promise never to do it again - or else! I cooled the conversation by agreeing with his responsibility to his employers and was able to leave under the threat of, "If I ever see you doing this again...”

On my way home it bothered me quite a bit. It bothered me enough to stop at the local police station and ask a few questions. I didn't want to break the law and I was unclear on this point. I ended up speaking with a Supervisor who happened to be involved in a similar incident at Wal-Mart's a few weeks prior; so he was familiar with the right to “freedom of speech” as it applies to “private property”. Here is what I came away with:

  • California Penal Code 422.6 prohibits law enforcement or anyone else from interfering with any right or privilege afforded by the Constitution, State Laws or Statutes. I believe every state has a similar law.
  • That this includes “private property” that has “public access” as long as there is no impeding of those entering or exiting. (This ruling is on a State by State basis.) In the California case, Pruneyard Shopping Center vs. Robins, a determination was made that owners of private property who allowed public access could not overrule the civil rights of that public!
  • That even amplification can be used as long as it is kept under a certain decibel level (defined by local or municipal codes).
  • That any ordinances passed (such as requiring a permit) are only to regulate the exercise of civil rights, not to deny them.

This issue of freedom of speech on private property was surprising to me; and would seem to include a lot of areas most of us have considered to be off limits. What about malls, especially outdoor malls, theater plazas, entertainment centers and town centers; as well as their parking lots? All are privately owned, but with public access. The managements of these facilities set up security to, among other things, chase off anything with religious overtones. My question is; is it legal?

By the way, when talking to the officer about this issue, it was in the context of open-air preaching, not just handing out tracts.

The guy at Wal-Mart was allowed to continue handing out tracts and talking to people. Wal-Mart had the police out several times and was unable to stop him. The Police are obligated to respond to any and all complaints, but here is what I was told. If those complaining (Wal-Mart or Home Depot) were to press the point, they could ask for a citizen’s arrest. The police are obligated to honor the request, but would advise against it since the penalty for violating my civil rights is a $5000 fine and/or up to one year in jail, as well as a mandatory one year of community service.

In most cases the police would inform you of their decision, and if against you, you would be asked to leave. My recommendation is to leave at that point; but not until the police ask you to do so, not just the management.

It is a good idea to talk to the local police before exercising your rights. It is a wise first step for several reasons. Discussing your intentions before hand will go a long way toward diffusing a confrontation. It will also give the local police a chance to become familiar with, and inform their officers of, the legal rights of those they serve. An emotional response is much more likely to be avoided when the officers, and you, are aware of your intentions beforehand, and are well informed and prepared. If you decide to test your rights and the police are called out, if you don’t think the conversation with the officer is going the way you think it should, I was told you could ask for the Supervisor or the Watch Commander to be consulted.

It is scary to think about pressing this point; but we have a message of hope and life for a lost and dying world. You can share the gospel with more people in ten minutes in a good open-air then you could on a one-to-one basis all week. The traditional gathering places of today have changed from those of the past; and are largely privately owned. The ownerships shut out the gospel; but it may be that we have access to more than we think. How will we know unless we try? Very few of the lost are coming to church in comparison to the number of lost gathering in the new public forums of today.

Pray for boldness and compassion for the lost, ignore the fear, and step out in faith. God is able; but are we willing? As Ray Comfort has said; there is no higher calling than to follow in the footsteps of the way of the Master.

The wicked flee when no man pursues; but the righteous are bold as a lion.

–Proverbs 28:1

…a servant of the Lord must not strive; but be gentle to all men, able to teach, patient, in meekness instructing those that oppose themselves; if God peradventure will give them repentance to the acknowledging of the truth.

–2 Tim. 2:24-25

Pray therefore the Lord of the harvest, that He will send forth laborers into His Harvest.

–Mat. 9:38

God bless,



Since this incident, I have done open-air several times at this very same privately owned shopping center, in a common area between a movie theater and a coffee house. On the last occasion I was approached several times by security and then the theater manager, informing me that if I didn’t leave, they would call the police. An officer was called out and after some conversation, I was asked to leave or I would be arrested. I asked that the Watch Commander be consulted and he said, “I am the Watch Commander!” Not much to do after that but leave. I had already been there for three hours, so I didn’t mind too much.

I have talked to the police since then and was informed that what happened was not right and I was within my legal rights. The officer who responded that night will be spoken to, and a memorandum sent throughout the department. I will try again.


I prayed a lot about it and felt led to again try and exercise my civil rights as before; but with one difference; limiting my time to a one-hour time frame. I went back to the same theater to do open-air and was immediately approached by security who informed me that management was calling the police. I thanked him for letting me know and then began to speak. The police showed up about a half-hour latter. They listened briefly and then asked to speak to me off to the side. The theater manager was a short distance away; but out of ear-shot. I found it interesting that the very first thing the police asked me was, how long did I plan on doing this? I said another half-hour. They said they would allow me to continue and that I did have a right to do it. They explained that I may have to get a permit in the future; but for now, I didn’t need one. I will continue to go there on Friday nights until things change.

No comments: