Our constitution affirmatively grants to individuals the rights of speech and assembly.
Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.
….
The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.
1 This Court has long held that the rights of speech and assembly cannot be curtailed by the government. King v. S. Jersey Nat’l Bank, 66 N.J. 161, 177, 330 A.2d 1 (1974). Moreover, under limited circumstances, we have determined that those constitutional rights may be enforced against private entities. Schmid, supra, 84 N.J. at 559, 423 A.2d 615. In fact, our *356 constitutional guarantee of free expression “is an affirmative right, broader than practically all others in the nation.” Green Party v. Hartz Mountain Indus., Inc., 164 N.J. 127, 145, 752 A.2d 315 (2000). Here, we must determine whether this case presents one of those limited circumstances where, in the setting of a private community, the Association’s rules and regulations are limited by the constitutional rights of plaintiffs.
**1067 A.
2 Federal case law has evolved to require that there must be “state action” to enforce constitutional rights against private entities. Marsh v. Alabama, 326 U.S.501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), is recognized as the leading case in this area of law. In Marsh, a private company owned and controlled all aspects of the town. Id. at 502, 66 S.Ct. at 277, 90 L.Ed. at 266. The company refused to allow solicitation and the distribution of religious literature. Id. at 503, 66 S.Ct. at 277, 90 L.Ed. at 267. Marsh was arrested for trespassing while distributing religious literature on company-owned land that was otherwise open to the public.Ibid. The Court explained that “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Id. at 506, 66 S.Ct. at 278, 90 L.Ed. at 268 (citation omitted). The Court then balanced the constitutional rights of the property owners against the First Amendment rights of Marsh to find that “the latter occupy a preferred position.” Id. at 509, 66 S.Ct. at 280, 90 L.Ed. at 270 (footnote omitted). The Court concluded that, in those limited circumstances, the property owner’s action constituted “state action” and violated the First Amendment. Id. at 508–09, 66 S.Ct. at 279–80, 90 L.Ed. at 269–70.
The United States Supreme Court later considered the application of Marsh to shopping centers. In the first case to address the issue, the Court held that the reasoning of Marsh applied to a shopping mall. See Amalgamated Food Employees Union Local *357 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 325, 88S.Ct. 1601, 1612, 20 L.Ed.2d 603, 616 (1968). However, the Court subsequently retreated from that position and, in a later case, concluded that the First Amendment affords no general right of free speech in privately owned shopping centers. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 80–81, 100S.Ct. 2035, 2040, 64 L.Ed.2d 741, 751–52 (1980) (noting that although First Amendment did not grant right of free expression in shopping centers, states may adopt greater free speech rights); Hudgens v. NLRB, 424 U.S. 507, 520–21, 96 S.Ct. 1029, 1036–37, 47 L.Ed.2d 196, 207 (1976).
B.
Our jurisprudence has not been as confining. We briefly outline the development of our law expanding the application of free speech or similar constitutional rights against non-governmental entities.
In State v. Shack, 58 N.J. 297, 300–01, 277 A.2d 369 (1971), this Court was asked to apply the principles of Marsh to a private farm operation. In Shack, two employees of federally funded organizations were arrested for trespassing when they entered private property to provide legal and medical assistance to migrant workers. Id. at 299–300, 277 A.2d 369. The defendants challenged the constitutionality of the trespassing statute on several grounds. Id. at 301, 277 A.2d 369.However, the Court declined to rule on the constitutional challenge, noting only that Marsh was inapplicable because the land in question was not open to the public. Id. at 301–02, 277 A.2d 369. Applying our common law, this Court held that the defendants’ conduct did not constitute trespass within the meaning of the statute under which they were prosecuted. Id. at 308, 277 A.2d 369. Thus, the broader issue of whether the federal or State Constitution required access to the land remained unresolved. Id. at 302, 277 A.2d 369.
Almost ten years passed before this Court decided the landmark Schmid case. In Schmid, supra, Princeton University, a **1068 private, non-profit institution, prohibited persons not affiliated with the *358 university from soliciting and distributing political literature on campus. 84 N.J. at 538–39, 423 A.2d 615. The defendant, a non-student, was arrested and convicted for trespassing while distributing Labor Party materials on the Princeton campus. Id. at 538, 541, 423A.2d 615. Princeton’s regulations required off-campus organizations to obtain permission before distributing materials. Id. at 539, 423 A.2d 615. The defendant claimed that his arrest was unconstitutional because distribution of political material was protected by both the First Amendment and Article I of the New Jersey Constitution. Id. at 542, 423 A.2d 615. Princeton argued that as a private institution, it was not subject to the strictures of the federal or State Constitutions. Ibid.
Analyzing Princeton’s claim, the Court recognized that the
constitutional equipoise between expressional rights and property rights must be similarly gauged on a scale measuring the nature and extent of the public’s use of such property. Thus, even as against the exercise of important rights of speech, assembly, petition and the like, private property itself remains protected under due process standards from untoward interference with or confiscatory restrictions upon its reasonable use.
[ Id. at 561, 423 A.2d 615 (citations omitted).]
3 The Court crafted “the test to be applied to ascertain the parameters of the rights of speech and assembly upon privately owned property and the extent to which such property reasonably can be restricted to accommodate these rights.” Id. at 563, 423 A.2d 615. That test requires courts to consider
(1) the nature, purposes, and primary use of such private property, generally, its “normal” use, (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property.
[ Ibid.]
The Court explained that such a test would allow the court “to ascertain whether in a given case owners of private property may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly.” Ibid. In assessing the reasonableness of any restrictions, the court shall consider “whether there exist convenient and feasible alternative means to individuals to engage *359 in substantially the same expressional activity.” Ibid. The Court applied the test to Princeton and found that the university had invited the public to use its facilities, the defendant’s expressional activities were consonant with both the private and public uses of Princeton’s campus, and Princeton’s regulations contained no standards for governing the exercise of free speech. Id. at 564–69, 423 A.2d 615. Therefore, the Court concluded that Princeton violated the defendant’s constitutional rights of speech and assembly. Id. at 569, 423 A.2d 615.
Charles Edward Lincoln, III
“Ich bin der Geist der stets verneint, und das mit recht,
denn alles was entsteht, Ist werth da ß es zu Grunde geht.”
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