Question
Our Peace Action group in Hawaii wants to demonstrate against military recruiters located in a private shopping mall. We’d like to know whether there is a right to access the recruiting office which transcends the right of the private shopping mall operators to remove us or have us arrested for “trespassing” in their mall. We are not planning any action which would interfere with Mall customers or with the actual operation of the recruiting office, but want to conduct an informational picket line. Do you have any information bearing on first amendment access to federal offices on private property or malls?
Answer
As you probably know, the United States Supreme Court has concluded that the First Amendment does not provide a right to picket on shopping mall private property. However, the high court has also noted that such rights may be found in state constitutional or statutory provisions. For example, in California, the California Supreme Court has held that the California Constitution protects petitioning and signature- gathering activities at large shopping malls, subject to reasonable “time, place and manner” restrictions. While we are unable to conduct an exhaustive search of Hawaii law, you should be aware of State of Hawaii v. Viglielmo, 95 P.3d 952 (2004), which concludes that no similar protection is offered by the Hawaii constitution.
In that case, the Hawaii Supreme Court affirmed the lower court’s conviction of an individual who was protesting the sale of military toys to children in front of Kay-Bee Toys, located in the Ala Moana Shopping Center in Honolulu. The individual was standing outside of Kay-Bee toys holding a sign and handing out pamphlets. The court reached its conclusion despite the fact that the shopping center housed a central bus transfer station, a United States Post Office, and a Honolulu satellite city hall.In your situation, the difference is that you do not want to picket a private business — rather, you want to picket a federal government office. Although this is a relevant factor, I was unable to locate any legal authority that would suggest this factual difference would lead to a conclusion that would be different from the one the Hawaii Supreme court reached in the Kay-Bee case. However, please understand that the hotline is offered as a free service, and as such I was unable to exhaustively research this point.
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