This case is a trial de novo on the record. Defendants were convicted of criminal trespass. The primary issue involves the competing interests of private property rights and the expressional rights of freedom of speech and assembly.
Defendants were present on the campus of Stevens Institute of Technology on October 22, 1990. They set up a table outside the administration building, intending to distribute political literature and speak to students. They were informed by University police that they were on private property and were asked to leave. Defendants refused, claiming constitutional rights of free speech. They were subsequently arrested for criminal trespass under N.J.S.A. 2C:18-3.
The issues presented here were addressed by the New Jersey Supreme Court in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed, sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1981). The Court in Schmid held that under the New Jersey Constitution a private property owner may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the freedoms of speech and assembly. Id., 84 N.J. at 563, 423 A.2d 615. The Schmid decision seeks to balance
private property and individual expressional rights. The Court established a test*fn1 to determine when this constitutional obligation attaches. If there is any public use of the property, then a court will apply the Schmid accommodation test. Bellemeade Dev. Corp. v. Schneider, 196 N.J. Super. 571, 575, 483 A.2d 830 (App.Div.1984), certif. denied, 101 N.J. 210, 501 A.2d 894 (1985).
The Schmid test is a sliding scale*fn2 test that chiefly measures the nature and extent of the public's invitation to use the property in question. At a certain point on the scale the private property is sufficiently devoted to public use to impose constitutional obligations on the private entity, assuming that the proposed use is not significantly discordant with the normal uses. Schmid, supra, 84 N.J. at 549, 563, 423 A.2d 615. If the obligation attaches, a court should then examine the reasonableness of the property owner's regulations limiting access to the property. Id. at 563, 423 A.2d 615. The property owner is entitled to establish reasonable time, place and manner rules but cannot otherwise forbid use of the property for First Amendment activities. Ibid.
The Schmid Court, and subsequent courts relying on Schmid, approach the test as a fact-based inquiry.*fn3 Defendants'
actions in the instant case parallel those in Schmid, but the site in the latter case was Princeton University. The Court found that Princeton clearly encouraged the use of the campus as a forum for free expression and debate, and concluded that Princeton was an open campus. Summing up its evaluation of the extent and nature of Princeton's invitation to the public,*fn4 the Court found that "[t]he University itself has endorsed the educational value of an open campus and the full exposure of the college community to the "outside world," i.e. the public-at-large. Princeton University has indeed invited such public uses of its resources in fulfillment of its broader educational ideals and objectives." Id. at 565, 423 A.2d 615.
The Court in Schmid did not hold that all universities by definition are such forums. Even if Schmid is read as implying that a primary goal of educational institutions per se is the fostering of free inquiry and expression, and acknowledging that the defendants' actions in this case are not in conflict with this goal, there remains an analysis of the second element of the Schmid test: the nature and extent of the public's invitation. This was the element emphasized by the Court in its analysis in Schmid and this is where Stevens Institute diverges from Princeton University.
There is no evidence in the record that Stevens encourages a policy of openness and freedom with regard to the use of its facilities. Stevens does ...