Daily Development for Thursday, February 5, 2004 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu CONSTITUTIONAL LAW; FREE SPEECH; PRUNEYARD DOCTRINE: Pruneyard quietly invades Florida. Wood v. State, 2003 WL 1955433 (Fla. App. 2/26/03) In an unreported and unappealed case of first impression, a Florida appeals court has decided that private owners of property serving as a "public forum" have an obligation to provide opportunities for free speech on their property. In short Florida has joined the Pruneyard crew. The case is a simple criminal trespass case. Defendant appealed his conviction when he was arrested at a private shopping mall attempting to collect signatures on a nominating petition so he could run for public office. The court reversed the conviction on the grounds that he had a free speech to perform this activity on defendant's mall property. Although the case involves the defendant against the State of Florida, it works out essentially to be a lawsuit between the defendant and the mall owners. First, in an extraordinarily brief opinion, the court decides that Pruneyard is right for Florida, even though it acknowledges that only some jurisdictions follow the concept and that the U.S. Supreme Court has rejected it. [T]he critical question is whether Florida's Constitution affords its citizens a . . . right to peaceful and expressive activity [similar to that afforded in the California Pruneyard decision.] . . . Our sister states . . . appear to be fairly split on either side of the fence. This state has long recognized that the exercise of the right to petition is a form of democratic expression at its purest. . . . This Court holds that the Constitution of Florida prohibits a private owner of a "quasi-public" place from using state trespass laws to exclude peaceful political activity." The court then evaluated whether there was anything in this case that justified excepting it from the usual rule permitting expressive speech in malls. It noted that the mall in question had not carved out any "time, place and manner" policies by which it permitted a reasonable level of expressive speech. "The only testimony . . . was that of the Mall manager who testified that the policy prohibited any solicitation of signatures for any petition. Since the Mall's policy was absolute, this Court need not, and cannot, inquire into whether the restrictions on [defendant's] right to engage in political activity was reasonably and narrowly tailored such that the Mall could restrict Wood and other citizen's peaceful expressive activity. The court distinguished this case from prior cases that validated legislation or police activity that restricted free use of mall premises. Those cases involved criminal statutes and did not speak to any particular duty on the part of the mall owner. Comment 1: The court notes that cases in California, Massachusetts, Pennsylvania, Washington and New Jersey have followed the Pruneyard rationale while cases in Minnesota and Connecticut have rejected it. Prior discussions on DIRT have demonstrated that California, at least, has significantly limited the reach of Pruneyard over the years. See the DD's for 9/7/01, 6/6/01, 12/21/00, 8/9/99, 7/9/99, and 9/18/96. Section 3.6 of the Friedman on Leases supplement identifies other authority on both sides of the issue and analyzes the cases. Comment 2: (Note that the citation at several points to Woods v. State, 733 So. 2d 980 (Fla. 1999), is apparently an erroneous attempt to cite to another court of appeals decision of the same name, but involving radically different facts) Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. 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