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State v. Schmid

decided.: November 25, 1980.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHRIS SCHMID, DEFENDANT-APPELLANT.



Handler

The opinion of the court was delivered by HANDLER, J.

While distributing political literature on the campus of Princeton University, defendant Chris Schmid, a member of the United States Labor Party, was arrested and charged by the University with trespass upon private property. He was subsequently convicted under the State's penal trespass statute. On this appeal he challenges the conviction on the grounds that it stems from a violation of his federal and state constitutional rights to freedom of speech and assembly.

I

4

On April 5, 1978, Chris Schmid*fn1 was distributing and selling political materials on the main campus of Princeton University, a private, non-profit institution of higher education located in the Borough of Princeton, New Jersey. These materials dealt

with the City of Newark mayoral campaign and with the United States Labor Party in general. Schmid was not a student at Princeton University nor was the Labor Party a university affiliated or campus based organization. On certain previous occasions members of the Labor Party had unsuccessfully sought to obtain University permission to distribute and sell political materials on campus. On this particular occasion in April 1978, however, no such permission was either sought or received.

Under the University regulations then in effect, permission was a prerequisite for the on campus distribution of materials by off-campus organizations. No such permission was required, however, for the same activity by a university affiliated organization or by Princeton students. The regulatory language pertaining to off-campus organizations stated in part:

Demonstrations and the distribution of leaflets, statements, or petitions . . . are permitted on the campus unless, or until, they disrupt regular essential operations of the University or significantly infringe on the rights of others. On the same grounds, the campus is open to speakers whom students, faculty, or staff wish to hear, and to recruiters for agencies and organizations in whom students or faculty have an interest. [University regulations as passed by the Council of the Princeton University Community, May 1975, as amended 1976.]

These regulations further provided that no solicitation of either sales or charitable contributions was to be permitted on campus without the express authorization of the appropriate University officials. Moreover, door-to-door political or charitable solicitation was generally prohibited. Ibid. The University revised these regulations in 1979.*fn2

Schmid stipulated that he had been aware in April 1978 that the existing University policy was against allowing "persons not connected with the University to enter campus uninvited and without sponsorship for the purpose of soliciting support or contributions." He had, in fact, previously been told on February 15, 1978 that his presence and activity on campus without permission were "forbidden" and that he "was subject to arrest for trespassing if he entered on campus to solicit again [without University permission]."

Schmid was arrested for trespass on University property on the day in question by a member of the Princeton University Security Department and charged as a disorderly person under N.J.S.A. 2A:170-31.*fn3 He was convicted of trespass in Princeton Borough Municipal Court on October 20, 1978 and fined $15 plus $10 costs. On February 20, 1979, following a trial de novo in Superior Court, Law Division, pursuant to R. 3:23 8, Schmid was again found guilty of trespass and the same monetary penalty was reimposed. While defendant's appeal was pending in the Appellate Division, this Court directly certified the case under R. 2:12-1. 81 N.J. 344 (1979). At the Court's invitation, Princeton University intervened in this appeal. The Association of Independent Colleges and Universities in New Jersey also filed an amicus curiae brief with this Court.

Defendant contends on this appeal that his trespass conviction offends both the federal and the State Constitutions. He specifically asserts that his conduct distributing political literature on the main campus of Princeton University constituted an exercise of his freedoms of speech and assembly, an exercise protected both by the First Amendment to the United States Constitution and by Article I, paragraphs 6 and 18 of the New Jersey Constitution; he maintains that the University was thus constitutionally obligated to permit this activity on its campus. In opposition, the State and the University contend that defendant's conduct encroached unlawfully upon legitimate and protectable private property rights. They argue that the University as a private entity had not undertaken state governmental action and had not invited or made a public use of its property sufficient to subject it to the strictures of the speech and assembly guarantees under either the federal or the State constitution. For these reasons, they urge that the University, in prosecuting Schmid for trespass upon private property, did not violate his individual constitutional rights.

We now address the respective federal and State constitutional issues framed by this appeal.

II

4

[1] Defendant asserts initially that his conviction in this case violated his rights under the First Amendment to the United States Constitution. The First Amendment was designed by its framers to foster unfettered discussion and free dissemination of opinion dealing with matters of public interest and governmental affairs. Mills v. Alabama, 384 U.S. 214, 218-219, 86 S. Ct. 1434, 1436, 16 L. Ed. 2d 484, 488 (1966); State v. Miller, 83 N.J. 402, 412 (1980). It embraces the freedom to distribute information and materials to all citizens, a freedom "clearly vital to the preservation of a free society." Martin v. Struthers, 319 U.S. 141, 146-147, 63 S. Ct. 862, 864-865, 87 L. Ed. 1313, 1319 (1943); see Lovell v. Griffin, 303 U.S. 444, 450-451, 58 S. Ct. 666, 668-669, 82 L. Ed. 949, 953 (1938). The guarantees of the First Amendment are effectuated against potential state interference

through the Fourteenth Amendment by limiting the extent to which states can restrict individuals in the exercise of rights of speech and assembly. See, e.g., Schneider v. State, 308 U.S. 147, 160, 60 S. Ct. 146, 150, 84 L. Ed. 155, 164 (1939). The First Amendment, however, does not similarly protect rights of speech and assembly against interference or impairment by private individuals. The Amendment imposes no limitations upon "the owner of private property used nondiscriminatorily for private purposes only," even though such use may trench upon the speech and assembly activities of other persons. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 2228, 33 L. Ed. 2d 131, 142 (1972).

It is clear that public colleges and universities, as instrumentalities of state government, are not beyond the reach of the First Amendment. Healy v. James, 408 U.S. 169, 180, 92 S. Ct. 2338, 2345, 33 L. Ed. 2d 266, 279 (1972). A public college or university, created or controlled by the state itself, is an arm of state government and, thus, by definition, implicates state action. Powe v. Miles, 407 F.2d 73, 82 (2 Cir. 1968); see American Future Systems, Inc. v. Pennsylvania State Univ., 618 F.2d 252, 255 (3 Cir. 1980).

A private college or university, however, stands upon a different footing in relationship to the state. Such an institution is not the creature or instrument of state government. Even though such an institution may conduct itself identically to its state-operated counterparts and, in terms of educational purposes and activities, may be virtually indistinguishable from a public institution, see McKay, "The Student as Private Citizen,"45 Denver L.J. 558, 560 (1968), a private college or university does not thereby either operate under or exercise the authority of state government. Hence, the state nexus requirement that triggers the application of the First Amendment is not readily met in the case of a private educational institution. See, e.g., Grafton v. Brooklyn Law School, 478 F.2d 1137, 1143 (2 Cir. 1973); Blackburn v. Fisk Univ., 443 F.2d 121, 123 (6 Cir. 1971); see generally Annot., "Action of Private Institution of Higher Education as Constituting State Action, or Action Under Color

of Law, for Purposes of Fourteenth Amendment and 42 U.S.C.A. ยง 1983," 37 A.L.R.Fed. 601 (1978).

Notwithstanding the primary thrust of the First Amendment against state governmental interference with expressional freedoms, the guarantees of this Amendment may under appropriate conditions be invoked against nongovernmental bodies. In particular settings, private entities, including educational institutions, may so impact upon the public or share enough of the essential features of governmental bodies as to be engaged functionally in "state action" for First Amendment purposes. The more focused inquiry therefore must be turned to those circumstances that can subject an entity of essentially nongovernmental or private character to the requirements imposed by the First Amendment.

One test of such state action involves the presence of an interdependent or symbiotic relationship between the private entity and the state government. This standard was utilized in Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), in which the Supreme Court held that a privately-owned restaurant which leased premises in a government-owned and government maintained parking garage was subject to the Equal Protection Clause of the Fourteenth Amendment; the restaurant thus could not refuse to serve blacks. The Court stressed that the parking facility was essentially a government building engaged in a governmental purpose and that the State and the restaurant mutually benefited from their "joint participation"in the operation. 365 U.S. 723, 726, 81 S. Ct. at 860-862, 6 L. Ed. 2d at 51, 52.

Another basis for determining the existence of state action is the extent of direct governmental regulation of the private entity.*fn4 This standard was applied in Public Utilities Comm'n v.

Pollak, 343 U.S. 451, 463, 72 S. Ct. 813, 821, 96 L. Ed. 1068, 1077 (1952), wherein the Supreme Court held that the First and Fifth Amendments to the federal Constitution were applicable to a policy decision made by a private transit company operating in the heavily-regulated field of public transportation because that decision was subject to approval by a governmental agency. The governmental regulation or control standard, however, is fairly difficult to administer as a means for positing state action. The Supreme Court has stated that the mere fact that a business is subject to extensive state regulation will not in and of itself convert the actions of that business entity into state action. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S. Ct. 449, 453, 42 L. Ed. 2d 477, 483-484 (1974). There must be demonstrated a "sufficiently close nexus" between the state regulation and the allegedly unconstitutional actions of the regulated business entity before it can be said that those actions emanate from or can be attributed to state government. Id. at 351, 95 S. Ct. at 453, 42 L. Ed. 2d at 484. Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171, 92 S. Ct. 1965, 1970, 32 L. Ed. 2d 627, 636-637 (1972) (Equal Protection Clause of Fourteenth Amendment did not apply to private club because state's regulation of club's liquor license did not directly involve state in club's racially-exclusive practices).

Both of these approaches for ascertaining state action have been followed in challenges to the actions of private colleges or universities as violative of First Amendment rights. Among the factors most often marshaled to show state action are that the institution received government funds, that the institution was performing a governmental function by providing education, that it was state accredited or state chartered or was otherwise highly regulated by the state, that the college derived economic benefit from tax exemptions, that it indirectly enforced governmental laws, or, in some instances, that the college had been built on formerly public lands. See, e.g., Blackburn v. Fisk

Univ., supra, 443 F.2d at 122-124. See also, Cohen, "The Private-Public Legal Aspects of Institutions of Higher Education," 45 Denver L.J. 643, 645-647 (1968); Schubert, "State Action and the Private University," 24 Rutgers L.Rev. 323, 334-347 (1970). For the most part, however, such challenges have failed. See Cannon v. Univ. of Chicago, 559 F.2d 1063 (7 Cir. 1977), rev'd on other grounds, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979); Krohn v. Harvard Law School, 552 F.2d 21, 24 (1 Cir. 1977); Greenya v. George Washington Univ., 512 F.2d 556, 559-562 (D.C. Cir. 1975), cert. den., 423 U.S. 995, 96 S. Ct. 422, 46 L. Ed. 2d 369 (1975); Blouin v. Loyola Univ., 506 F.2d 20, 22 (5 Cir. 1975) (per curiam); Wahba v. New York Univ., 492 F.2d 96, 101 (2 Cir. 1974), cert. den., 419 U.S. 874, 95 S. Ct. 135, 42 L. Ed. 2d 113 (1974); Blackburn v. Fisk Univ., supra, 443 F.2d at 123; Browns v. Mitchell, 409 F.2d 593, 594-595 (10 Cir. 1969); Greene v. Johns Hopkins Univ., 469 F. Supp. 187, 196-198 (D.Md.1979); Huff v. Notre Dame High School of West Haven, 456 F. Supp. 1145, 1147-1149 (D.Conn.1978); Pendrell v. Chatham College, 370 F. Supp. 494, 499 (W.D.Pa.1974); Furumoto v. Lyman, 362 F. Supp. 1267, 1276-1280 (N.D.Cal.1973); Grossner v. Trustees of Columbia Univ., 287 F. Supp. 535, 546-549 (S.D.N.Y.1968); contra, Braden v. Univ. of Pittsburgh, 552 F.2d 948, 961 (3 Cir. 1977); Rackin v. University of Pennsylvania, 386 F. Supp. 992 (D.C.Pa.1974).*fn5

The record reveals that Princeton University, though privately owned and controlled, is involved in a continuous relationship with the State. The University is a state accredited educational institution; it participates in and receives, as do other public and private educational institutions, the advantages of certain State programs, e.g., The New Jersey Educational Facilities Authority Law, N.J.S.A. 18A:72A 1 et seq. (authority created to issue bonds for capital improvements and new construction on the campuses both of public and private post secondary educational institutions); The Higher Education Assistance Authority Law, N.J.S.A. 18A:72 1 et seq. (creating fund to provide loans to New Jersey students attending public or private post secondary educational institutions). Its property and buildings on the central campus, with the exception of its ice skating and hockey facility and its campus parking lots, are tax exempt. The University also receives state budgeted funds through The Independent College and University Assistance Act, N.J.S.A. 18A:72B-15 et seq. In addition, according to the stipulations of the parties, the University Security Department, some of whose

employees are deputized to make arrests under the laws of New Jersey, is primarily responsible for providing security services for the entire University community.

Nonetheless, this congeries of facts does not equate with state action on the part of Princeton University. See, e.g., Blackburn v. Fisk Univ., supra, 443 F.2d at 122-124. Princeton University is, indisputably, predominantly private, unregulated and autonomous in its character and functioning as an institution of higher education. The interface between the University and the State is not so extensive as to demonstrate a joint and mutual participation in higher education or to establish an interdependent or symbiotic relationship between the two in the field of education.

Moreover, the degree of State regulation does not evince a "close nexus" between the State and Princeton University's policies, particularly with regard to the public's access to the University campus and facilities and, even more particularly, with regard to either the distribution of political literature or other expressional activities on University property. Furthermore, the resort by Princeton University to the State's trespass laws to protect its own rights of property does not, as suggested in the separate opinion of Justice Pashman, post at 573, constitute state action for First Amendment purposes. In the absence of a protectable First Amendment right in the individual, the property owner's recourse to appropriate and otherwise neutral penal sanctions to protect its legitimate interests does not constitute action by the State nor clothe the property owner with a state identity for First Amendment purposes. See Bell v. Maryland, 378 U.S. 226, 327-333, 84 S. Ct. 1814, 1869-1872, 12 L. Ed. 2d 822, 856-859 (1964) (Black, J., dissenting).*fn6

[2, 3] Although Princeton University is thus not subject to First Amendment obligations by virtue of a joint relationship with or direct regulation by the State, there remains to be considered still another standard for determining First Amendment applicability, viz, the "public function doctrine." See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 98 S. Ct. 1729, 1734, 56 L. Ed. 2d 185, 195 (1978). Even though a private entity is not engaged in "state action," it may nevertheless be required to honor First Amendment rights if its property is sufficiently devoted to public uses. See Marsh v. Alabama, 326 U.S. 501, 506, 66 S. Ct. 276, 278, 90 L. Ed. 265, 268 (1946). "The more an owner for his advantage opens up his property to 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.

A company-owned town which possessed all of the characteristics of a municipality, providing full access to the public to all of its facilities including its shopping district, was held to be subject to the strictures of the First Amendment. Id. at 503, 508-509, 66 S. Ct. at 277, 280, 90 L. Ed. at 266-267, 270. In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 317, 88 S. Ct. 1601, 1608, 20 L. Ed. 2d 603, 611 (1968), the Supreme Court found "striking" similarities between a company town, as described in Marsh v. Alabama, supra, and a privately-owned shopping mall. Specifically noting the common sidewalks and parking areas and the invitation to the public to use the property, the Court held that it was a violation of the First Amendment to apply a trespass statute to union members picketing a non-unionized supermarket located in the privately-owned shopping mall. Id. at 322, 323, 88 S. Ct. at 1610-1611, 20 L. Ed. 2d at 614-615; see T. Emerson, The System of Freedom of Expression 307-310 (1970).

A different result was reached in Lloyd Corp. v. Tanner, supra,. The majority of the Supreme Court in Lloyd held that a privately-owned shopping mall could bar the distribution of anti-war handbills on mall property. It distinguished Logan Valley on the ground that the subject matter of the handbills in Lloyd was unrelated to the shopping center's business. 407 U.S. at 564-565, 92 S. Ct. at 2227, 33 L. Ed. 2d at 140. With respect to the public use of the property, the Court noted that the invitation for public use of the shopping mall was not "open ended" or for "any and all purposes." Id. at 565, 92 S. Ct. at 227, 33 L. Ed. 2d at 140. It also found significance in the fact that there were adequate alternative means of communication, i. e., that there were public areas directly outside the mall that were available for the distribution of the anti-war handbills. Id. at 566-567, 92 S. Ct. at 2227-2228, 33 L. Ed. 2d at 141. The Court reinforced the Lloyd holding in Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976), wherein it ruled that striking warehouse employees who sought to picket their employer's retail store located in a privately owned shopping center were not protected under the First Amendment. A majority of the Hudgens Court supported the view that Lloyd effectively overruled and substantially constricted the reach of Logan Valley. See Hudgens v. NLRB, supra, 424 U.S. 523, 524, 535, 96 S. Ct. at 1038, 1039, 1044, 47 L. Ed. 2d at 209, 210, 216. Very recently, in PruneYard Shopping Center v. Robins, 447 U.S. 74, 78-88, 100 S. Ct. 2035, 2039-2041, 64 L. Ed. 2d 741, 751-752 (discussed infra at 552), the Supreme Court recapitulated this judicial history and observed that the rationale of Logan Valley had been "substantially repudiated" by Lloyd and had been actually overruled by Hudgens.

While the Supreme Court has now indicated that the Logan Valley decision has been overruled, it did not reject or disapprove of Lloyd Corp. v. Tanner, (although the continued utility of Lloyd has been questioned. See concurring opinion of Justice Schreiber, post at 579).

If the Lloyd approach were applied in the present case, it would be difficult to conclude under the circumstances disclosed

by the record that Princeton University is directly subject to First Amendment strictures. See generally, Note, "First Amendment and the Problem of Access to Migrant Labor Camps after Lloyd Corp. v. Tanner," 61 Cornell L.Rev. 560, 578-580. For example, in assessing the availability of alternative means of communication, there are public streets, sidewalks, parking areas, and a train station immediately contiguous to Princeton University's main campus and most of its buildings and facilities; a major street with public sidewalks bisects the University campus. These numerous public areas apparently furnish to members of the public, as well as the college community, ample alternative locations other than the property of the University itself as means for the dissemination and exchange of information, views, and ideas.

Were we to concentrate upon the other aspects of the Lloyd standard (notwithstanding their precedential diminution as a result of Hudgens), those focusing upon the scope of the public's invitation and the nature of the expressional activities in relation to the use of private property, the applicability of the First Amendment is less clear. Arguably, there are a broad public invitation and wide use of University property that serve to encourage expressional rights and are conducive to the educational goals of Princeton University. (See discussion infra at 564-566). Nevertheless, it must be recognized that the public uses and expressional activities that are permitted by the University are subordinate to its overall educational policies. In this sense, while the invitation to the public is broad, it is not truly "open ended" or for "any and all purposes." Lloyd Corp. v. Tanner, supra, 407 U.S. at 565, 92 S. Ct. at 227, 33 L. Ed. 2d at 140. Therefore, although Princeton University's raison d'etre is more consonant with free speech and assembly principles than a shopping center's purposes might be, the attachment of First Amendment requirements to the University by virtue of the general public's permitted access to its property would still be problematic.

If we were to examine whether Princeton University has in the pervasive and all inclusive sense of Marsh v. Alabama,

supra, undertaken to act as a local government body, the applicability of the First Amendment remains doubtful. The nature of college community life as determined by Princeton University, even with its residential characteristics, would not seem to invest the University with the fundamental attributes of a government substitute or surrogate in the manner deemed critical for positing state action in Marsh v. Alabama, supra. (See discussion supra at 549). A private educational institution such as Princeton University involves essentially voluntary relationships between and among the institution and its students, faculty, employees, and other affiliated personnel, and the life and activities of the individual members of this community are directed and shaped by their shared educational goals and the institution's educational policies. The public's invitation to use college facilities is incident to the educational life of the institution and must comport and be integrated with its educational endeavors. It is dubious therefore whether Princeton can or should be regarded as a quasi-governmental enclave or the functional equivalent of a "company town," which has all of the characteristics of a municipality, for First Amendment purposes. Powe v. Miles, 407 F.2d 73, 80 (2 Cir. 1968): McLeod v. College of Artesia, 312 F. Supp. 498, 502 (D.N.M.1970); Grossner v. Trustees of Columbia Univ., 287 F. Supp. 535, 549 (S.D.N.Y.1968).

In attempting to pull together these diverse strands of constitutional doctrine, it is apparent that First Amendment principles as applied to the owners of private property are still evolving. The precise question in this case has not been definitively resolved or even clearly foreshadowed by extant decisional authority. Furthermore, invoking First Amendment strictures against private property owners, as has been noted, necessarily engenders countervailing concerns for legitimate private property rights, e.g., PruneYard Shopping Center v. Robins, supra. In this case, the difficulty of the decisional task and the uncertainty of its solution posed by this consideration are further compounded because the private property is an educational institution. Such institutions, in addition to their own protectable private property interests, are committed to the achievement of

important societal educational objectives which are generally consistent with First Amendment purposes. While these purposes may temper the protections accorded private property, the legitimate and genuine property interests of educational institutions should not be denuded because of the apparent coincidence between the goals of higher education and the First Amendment.

We are thus confronted with strong crosscurrents of policy that must be navigated with extreme care in reaching any satisfactory resolution of the competing constitutional values under the First Amendment in this case. These concerns persuade us to stay our hand in attempting to decide the question of whether the First Amendment applies to Princeton University in the context of the present appeal. Defendant, moreover, has ...


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