Jacobs v. Major
407 N.W.2d 832, 1987 Wisc. LEXIS 694, 139 Wis. 2d 492 (1987)
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Rule of Law:
Article I, sec. 3 of the Wisconsin Constitution, which guarantees the right to free speech, protects individuals only from interference by state actors, not from the actions of private property owners.
Facts:
- Plaintiffs own two large, enclosed shopping malls, East Towne and West Towne, in Madison, which maintain a strict policy prohibiting soliciting, leafletting, and religious or political activities.
- Robert Major formed a dance troupe, Nu Parable, to publicly perform a choreographed dance depicting the results of nuclear warfare as a political statement.
- In March 1984, Major requested permission from East Towne management to perform in the mall, but was refused due to the potentially controversial nature of the performance.
- On April 12, 1984, Major distributed letters to store managers at East Towne announcing the troupe's intent to perform there on an upcoming Saturday; mall management asked him to stop, but he refused.
- Approximately one week later, Major distributed similar letters to merchants at West Towne, expressing the intent to perform there on May 5.
- On May 19 and May 26, 1984, Major and others entered the malls without consent to distribute leaflets critical of the mall's policy and refused to leave when requested.
- On August 9, 1984, Major and his troupe, in costume, entered East Towne and performed their dance and distributed leaflets, despite being asked not to by mall security.
Procedural Posture:
- The mall owners (plaintiffs) sued Robert Major and Nu Parable (defendants) in the Dane County Circuit Court, seeking injunctive relief and damages.
- The trial court granted a temporary injunction enjoining the defendants from entering the malls except as bona fide shoppers.
- After defendants performed a dance in violation of the injunction, the trial court held them in contempt and fined them.
- Following a trial, the circuit court entered a judgment permanently enjoining the defendants from performing on the plaintiffs' property but denied the plaintiffs' request for damages.
- Plaintiffs appealed to the Wisconsin Court of Appeals from the denial of full relief, and defendants cross-appealed, alleging the injunction violated their constitutional free speech rights.
- The Court of Appeals affirmed the trial court's judgment, holding that the injunction was a reasonable restriction.
- The case was then brought before the Supreme Court of Wisconsin for review.
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Issue:
Does Article I, sec. 3 of the Wisconsin Constitution require the private owners of a large shopping mall to permit non-consensual use of their property for political speech purposes?
Opinions:
Majority - Steinmetz, J.
No. Article I, sec. 3 of the Wisconsin Constitution protects free speech against state interference, not against restrictions imposed by private property owners. The court holds that the language of the provision has a plain and unambiguous meaning: it is a limitation on governmental power. Historical analysis confirms that the primary purpose of state constitutional declarations of rights is to restrain government action, not to create positive rights assertable against other private individuals. The court rejects the argument that a large shopping mall functions as the modern equivalent of a company town or public forum, finding that malls are primarily commercial enterprises, not quasi-municipalities. This decision aligns with courts in states like Connecticut and New York and declines to follow the broader interpretation of a similar provision by the California Supreme Court in PruneYard. The court concludes that since there is no state action involved, the Wisconsin Constitution has no role in resolving this dispute between private parties.
Concurring in part and dissenting in part - Abrahamson, J.
Yes. The Wisconsin Constitution should be interpreted to protect political speech reasonably exercised in a nongovernmental 'public forum' from unreasonable interference by the owners. The dissent argues that the framers of the Wisconsin Constitution intentionally adopted broader language ('Every person may freely speak...') than the U.S. Constitution's First Amendment, specifically rejecting a proposal that only limited legislative action. Large, modern shopping malls have replaced traditional downtowns as centers of community life and function as public forums. The mall owners' power to exclude all political speech is a threat to democracy analogous to the governmental interference the framers feared. The majority's creation of a presumption that the Declaration of Rights only protects against state action is not supported by the text and renders the first clause of Article I, sec. 3 mere surplusage. A balancing of the competing rights of speech and property is the proper approach.
Concurring in part and dissenting in part - Bablitch, J.
Yes. The Wisconsin Constitution protects the reasonable exercise of political speech in a nongovernmental public forum. This dissent emphasizes that the framers of the Wisconsin Constitution explicitly considered and rejected language that would have limited free speech protection to only governmental action. The framers were well aware that accumulations of private economic power could pose as great a threat to individual liberty as government itself. By limiting the provision to state action, the majority opinion reinserts a restriction that the framers specifically rejected, thereby ignoring clear historical intent.
Analysis:
This decision firmly establishes the 'state action' doctrine as a prerequisite for claims under the Wisconsin Constitution's free speech clause, significantly strengthening private property rights against expressive activity. It places Wisconsin in a national jurisprudential split, aligning it with a majority of states that have rejected the California PruneYard model, which extends state free speech protections to privately-owned shopping centers. The ruling clarifies that in Wisconsin, places like malls are not considered quasi-public forums for constitutional purposes, thereby limiting the venues available for political expression and forcing such activities onto traditional public property like parks and sidewalks. This precedent makes it much more difficult for individuals to challenge speech restrictions imposed by private entities in Wisconsin.
