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Free Speech, Trespass, and the Massachusetts SJC’s decision in Glovsky v. Roche Bros. Supermarkets, Inc.

The Supreme Judicial Court’s October 10, 2014 decision in Glovsky v. Roche Bros. Supermarkets, Inc., is now the high-water mark in Massachusetts for the right to access private property, over the objection of the property owner, in order to fulfill a constitutional right. The decision addresses the right of a candidate for public office to solicit signatures for ballot access outside the entrance to a supermarket, but could have important implications for the exercise of free speech in Massachusetts. It also could have implications for certain criminal defendants; our firm has represented a defendant arrested for trespass when distributing literature or protesting on private property.

When a Roche Bros. employee told Steven Glovsky, a candidate for Governor’s Counsel, that the supermarket’s policy did not allow signature solicitation on its private property, preventing him from seeking signatures to get on the ballot, he proceeded to file suit. The SJC in Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83 (1983) (Batchelder I) previously upheld a candidate’s right under the Massachusetts Declaration of Rights Article 9 to seek signatures in the common areas of a shopping mall, comparing the mall to traditional public fora like downtown areas. In Glovsky, the SJC went a step further, clarifying that whether or not a location is functionally equivalent to a traditional public forum, signature solicitation must be allowed if the interests of the candidate outweigh the interests of the property owner. The SJC found that Glovsky had a “substantial interest” in soliciting signatures on the sidewalk of the supermarket, which was the only one in town, and that allowing such solicitation would not unduly burden Roche Bros.’ property interests by, for example, disrupting its business. (Glovsky’s suit was still unsuccessful, however, because the SJC found that the supermarket had not violated the Massachusetts Civil Rights Act.)

The question that the Glovsky decision raises for those of us who are not seeking public office is whether the protection that the SJC has granted to Glovsky under art. 9 would extend to individuals seeking to exercise a right to freedom of speech under the Declaration of Rights art. 16.  In other words, should someone passing out political pamphlets or waving a protest sign at a shopping mall in Massachusetts be treated differently than a candidate for political office seeking signatures for ballot access?  The answer to this question is important, in practice, because many private institutions (including, in our firm’s experience, many universities) not only restrict the exercise of such speech on their property, but give activists no-trespass warnings and have them arrested if they persist.

There are several reasons to think that art. 9 (ballot access) and art. 16 (free speech) should offer the same protection.  First, the Batchelder I court held that art. 9 applies to forbid restrictions on ballot access whether or not the state is involved in creating the restriction.  A fair reading of the text of art. 16 suggests that the same is true under that provision, which does not say that it applies only to governmental restrictions on speech or vanishes when the speaker leaves public property.  (This is distinct from how the U.S. Supreme Court has interpreted the First Amendment.  However, a state is free to “adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980).)

Second, the balancing test outlined in Glovsky and Batchelder I, which looks at the rights of the property-owner as well as of the person seeking to exercise a constitutional right on private property, would ensure that protecting free speech on certain private properties wouldn’t disrupt business at shopping malls, supermarkets or universities. The public policy of the Commonwealth, which has its roots in a history of freedom of political expression, also favors an expansive interpretation of art. 16; freedom of expression on political issues is “a right growing out of our free institutions and essential to the support of them.” Commonwealth v. Blanding, 3 Pick. 304, 313, 315 (1825). The Batchelder I court also noted with approval cases in which the high courts of other states found a right to orderly exercise of free speech on private property. Id. at 90 (discussing State v. Schmid, 84 N.J. 535 (1980) and Commonwealth v. Tate, 495 Pa. 158, 173 (1981)). And finally, it would be troubling from a policy perspective to protect the constitutional rights of candidates for office–relatively few, high status individuals–more carefully than the free speech rights we all share.

However, there is also reason for caution in predicting how the SJC would rule on a case under art. 16. The court in Batchelder I specifically left “to another day” the “question of rights that may arise under Article 16” regarding the right of individuals to engage in orderly free speech on private property. 388 Mass. at 92. It also distinguished between the needs of a person gathering signatures and those of someone seeking to be heard on other issues:

The difference between free speech and art. 9 rights to free elections and to be a candidate equally with others is not purely theoretical. Ideas and views can be transmitted through the press, by door-to-door distributions, or through the mail, without personal contact. On the other hand, a person needing signatures for ballot access requires personal contact with voters.

Id.  Glovsky repeats this caution.  The extent of the right to free speech on private property in Massachusetts thus remains unresolved pending some future action of the SJC; we will watch the law as it continues to develop.

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