NEWC building itself during clinic business hours.
Plaintiffs' First Amendment Claim
Plaintiffs claim that their arrests for defiant trespass were unlawful and constitute a violation of their first amendment free speech rights. To succeed on this claim, plaintiffs must show that they were arrested without probable cause.
Losch v. Borough of Parkesburg, 736 F.2d 903 (3d Cir. 1984). On the stipulated facts submitted to this Court, I find that the arresting officers did have probable cause to believe that plaintiffs had committed the offense of defiant trespass.
Probable cause exists if the arresting officers reasonably believed that each element of an offense was present at the time of arrest. Radich v. Goode, 1988 U.S. Dist. LEXIS 10011, No. 87-7358, slip op. at 2 (E.D. Pa. Sept. 6, 1988). Pennsylvania law provides that an individual commits defiant trespass if, knowing that he has no license to do so, he enters or remains on property as to which lawful notice against trespass is given.
Each plaintiff entered the NEWC abortion clinic's private property despite repeated notification that such entry was prohibited. The clinic provided plaintiffs with notice by posting signs to protect its property against trespass. In addition, on October 5, 1985, each time plaintiffs Stephanie Armes, Joseph Wall and Michael McMonagle crossed onto the clinic's private property, police officers personally warned them to return to the public sidewalk or face arrest. The plaintiffs were arrested after they repeatedly ignored these warnings against trespass.
Plaintiffs claim, however, that their actions fell within the scope of a statutory affirmative defense and that therefore they were arrested without probable cause. The Pennsylvania defiant trespass statute provides that plaintiffs have an affirmative defense if they prove that "the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining" on the premises. 18 Pa. Cons. Stat. Ann. § 3505 (c)(2). Plaintiffs contend that the no trespassing policy does not constitute a lawful condition because it violates their first amendment free speech rights.
I find that no grounds exist to support plaintiffs' first amendment claim.
"The guarantees of the First Amendment have never meant that people who want to [protest] have a constitutional right to do so whenever and however and wherever they please." Adderley v. Florida, 385 U.S. 39, 48, 17 L. Ed. 2d 149, 87 S. Ct. 242 (1966); Greer v. Spock, 424 U.S. 828, 836, 47 L. Ed. 2d 505, 96 S. Ct. 1211 (1972). The degree of protection guaranteed by the First Amendment varies depending on the forum in which the speech occurs. Although any limitation on the fundamental right to express dissenting views must be approached with caution, first amendment rights are weakest where speakers deliver their message on privately owned property.
The right to exclude others is a fundamental element of private property ownership, and the First Amendment does not create an absolute right to trespass. E.g., Kaiser Aetna v. United States, 444 U.S. 164, 179-180, 62 L. Ed. 2d 332, 100 S. Ct. 383; Hudgens v. National Labor Relations Board, 424 U.S. 507, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1976). In Central Hardware Co. v. NLRB, 407 U.S. 539, 33 L. Ed. 2d 122, 92 S. Ct. 2238 (1972), police arrested a Union organizer for trespassing on the privately owned parking lot of a retail hardware store. The Court stated, "before the owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use." Id. at 547. The Union argued that because the store's parking lot was "open to the public," it had not acquired the characteristics of a public municipal facility. The Court rejected this position, stating, "such an argument could be made with respect to almost every retail and service establishment in the county, regardless of size or location. To accept it would. . . . constitute an unwarranted infringement of long-settled rights of private property protected by the Fifth and Fourteenth Amendments." Id.
In Lloyd Corp. v. Tanner, 407 U.S. 551, 567-70, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972), a case decided by the Supreme Court on the same day as Central Hardware, security guards threatened persons distributing handbills on the property of a privately-owned shopping center with arrest for criminal trespass. The leafletters claimed that because a shopping center includes sidewalks, streets and parking areas, it serves the same function as a municipal business district. They argued that as a result, members of the public have the same free speech rights on shopping center premises as they do on city streets. The Court rejected this argument, holding that:
although accommodations between the values protected by [the First, Fourteenth and Fifth] Amendments are sometimes necessary, and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only. . . .
The Court went on to explain that property does not "lose its private character merely because the public is generally invited to use it for designated purposes. [For example], few would argue that a free-standing store, with abutting parking space for customers, assumes significant public attributes merely because the public is invited to shop there." Id.
The NEWC is a private corporation which provides gynecological care, counseling and abortion services. The NEWC abortion clinic is located on private property and is open to the public only to the extent that members of the public require its health care services. The clinic's invitation to members of the public who seek to use its services does not transform the clinic into the functional equivalent of a public forum. An abortion clinic does not serve to replace public streets and sidewalks as a forum for the dissemination of ideas and fulfills far fewer of the societal functions of the traditional main street or town market place than does a shopping center.
In this situation, the rights of the private property owner outweigh the rights of the protestors, and plaintiffs have no first amendment right to protest on the clinic grounds.
Even where speech occurs on property owned by the government, if such property is a nonpublic forum the First Amendment does not forbid the content-neutral exclusion of speakers who would disrupt the function of that forum and would hinder its effectiveness for its intended purpose. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 811, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985). Speech may be regulated in a nonpublic forum if the regulation is reasonable, content-neutral and if it allows ample alternative avenues of communication. Id. at 800; Pennsylvania Alliance for Jobs & Energy v. Council of Munhall, 743 F.2d 182, 185 (3d Cir. 1984).
The City's practice of arresting protestors who trespass on the NEWC clinic property was (1) reasonable; (2) content-neutral; and (3) allowed the protestors other avenues of communication. The City's actions to enforce the defiant trespass law constitutes a reasonable protection of the clinic's private property rights. "The police have an obligation to take reasonable steps to attempt to insure that protestors do not cross the line between peaceful protest and violation of the law." Dowling v. City of Philadelphia, 855 F.2d 136, 143 (3d Cir. 1988). Furthermore, the City did not discriminate on the basis of the content of the protestors' speech. Although on the evidence before this Court, it appears that thus far the City has only arrested anti-abortion protestors, no evidence has been submitted indicating that the clinic allowed any other group an opportunity to protest on its property. All protestors, regardless of their point of view, are prohibited from entering clinic property without permission of the owner. Finally, an alternative avenue of communication existed in the form of the public sidewalk which lies in close proximity to the clinic. Plaintiffs could have communicated their views effectively to clinic clientele and staff by remaining on this sidewalk, where their protest activities were in no way restricted by the defiant trespass law.
The City's actions in preventing anti-abortion protestors from trespassing on private property where they had no proper business purpose does not constitute a violation of the First Amendment.
Plaintiffs' opposition to abortion appears to be a sincere and deeply held view. This fact, however, is insufficient to give plaintiffs a privilege to express their views by invading the private property of those with whom they disagree. The First Amendment does not guarantee a right to commit defiant trespass.
Those who engage in civil disobedience on private property must pay the price: arrest and prosecution.
Plaintiffs' Malicious Prosecution Claim10
Plaintiffs also claim that their arrests for defiant trespass constitute malicious prosecution.
To succeed in a claim of malicious prosecution, plaintiffs must show: "(1) that the underlying proceeding terminated favorably to the [plaintiff]; (2) that the defendant caused those proceedings to be instituted without probable cause; and (3) malice." Shaffer v. Stewart, 326 Pa. Super. 135, 140, 473 A.2d 1017, 1020 (1984) (quoting Junod v. Bader, 312 Pa. Super. 92, 95, 458 A.2d 251, 253 (1983)); 42 Pa. Cons. Stat. § 8351. As I have discussed at length supra, the arresting officers did have probable cause to believe that plaintiffs had committed the offense of defiant trespass. As a result, I find that no malicious prosecution occurred.
An appropriate judgment follows.
AND NOW, this 13th day of February, 1989, judgment is ENTERED in favor of defendant and against plaintiffs.