Jul 2, 2018 | Alan Gordon |
WHERE CAN CANDIDATES GATHER SIGNATURES? Exercising your rights on public vs private property By Alan Gordon THIS MATERIAL IS NOT INTENDED AS LEGAL ADVICE, OPINION OR DRAFTING, AND IS MEANT FOR EDUCATIONAL PURPOSES ONLY In Rhode Island, political candidates are scrambling for signature again, seeking ballot access for the primaries and beyond. I will be your next Attorney General, so I thought to offer some legal research to my fellow candidates. Like most candidates, I want to gather signatures anywhere I can, but property owner rights, candidate rights, and bystander rights all have to be balanced. I should have the right to exclude Hillary Clinton from gathering signatures for her next campaign in my living room, at the wedding reception hall I rent for my daughter, or in my store. But can I stop her from gathering signatures on the sidewalk in front of my store? Can I allow other candidates inside my store, but exclude her? Switch your perspective around now to consider the rights of candidates like me, who need signatures. Can a store where I'm shopping prevent me from talking to other shoppers? Can a store that allows Girl Scouts to sell cookies out front prevent me from gathering signatures, when they are open to the public, and activity outside is irrespective of shopping? Can I set up a table on a city sidewalk to gather signatures? Will police back me up if someone tries to violate my rights? Gathering RI ballot petition signatures almost requires a table, due to the volume of paper involved. The law for doing this in public is not open-and-shut, and is full of subtleties, red herrings and blind alleyways. Getting a table set up legally on public property isn't easy, but the most popular private property (big stores) are not always willing to allow petitioning, either. Where is a candidate to go? Here, we're going to look at the law for public property generally, special considerations in Providence, and the law for private property. PRIVATE PROPERTY -- When petitioning in private property like shopping malls, the leading US Supreme Court case law, Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), is often cited, but is not particularly helpful in Rhode Island. Private property owners simply may limit free speech on their property, even when open to the public generally, if the prohibition does not affect the normal course of the property's business, and as long as it is neutral as to race, creed, religion, and other protected classes. A mall may make a sign that says "no petitioning,", for example, but may not enforce a rule that says "only Republicans may not petition." In Pruneyard, the real question was: can a State limit a property owner's rights to exclude people (petitioners), without violating the property owner's property rights without due process? The law in CA said the mall had to let the petitioning occur, if it was open to the public and in public areas like concourses. THIS DOES NOT NECESSARILY APPLY IN RHODE ISLAND, since we have no law expressly requiring publicly-open malls to allow political free speech. It is up to each mall. The Plaintiffs in Pruneyard were asked to leave and did so, only suing later. Had they refused to leave, they would have been arrested for trespassing, even if they won in court later. The arrest would have cast a negative cloud over their arguments. If a private property owner does not want petition-gathering, it's probably best to leave. Pruneyard is limited to private property. The right recognized in the case is not one that can be enforced "on the ground," in a dispute, and is only good for getting after-the-fact court orders. You generally just have to leave private property, if asked, or risk trespassing warnings, charges, arrest, jail, etc. You could very well win in court, later, but police will generally protect property owner rights first, before free speech rights. Unless you want Hillary Clinton gathering signatures at your bar or your next barbecue, you should be glad of that, too. At the end of the day, your best bet on private property is to either have the express permission of the property owner, or else be so polite and friendly that no one minds you being there. If asked to leave, do so, and sue later. PUBLIC PROPERTY - While public property in Providence presents special challenges and opportunities, public free speech is generally allowed on any public property, with a few minor limitations. 1. Blocking a sidewalk or roadway is impolite and even dangerous, and will not be allowed anywhere. In most places, merely setting up a table or display in considered a sidewalk impediment, and may require a permit, but in real life, municipal officials in charge of enforcement can be quite lenient where walkways or roadways are not actually being blocked. Even where absolutely no tables or chairs are allowed, citizens are always free to walk on sidewalks, and even to briefly stop and converse. Some political pickets (involving many more than 1 person) have been afflicted by a "keep moving" rule that sidewalks are for walking, not standing, but those cases related to actual blockages of property. In practice, few Rhode Island police are that strict, so long as people can get past. Being polite and safe goes a long way on the ground. 2. Setting up in front of a storefront, but on public property, may be technically lawful, but if the storefront owner opposes, then it is rude, and is a bad strategy for most candidates. Most store owners care about their business more than who gets on the ballot, so avoid any disturbance to their business flow, first and foremost. Many shopkeeps will just allow signature gathering in front of their store if asked, and some even take registrations for scheduling. Where a store owner specifically allows it, police are unlikely to intervene as long as walkway and motorway safety and courtesy are observed. 3. Providence requires permit applications for public displays -- but the permit process and expense is unwieldly for small events like signature gathering or small political rallies, and is more meant for giant street-blocking parades like Providence Festival and Waterfire. IN THE LACK OF A PRACTICABLE RULE GOVERNING THE RULES FOR PERMITTING OF TABLES AND SMALL GATHERINGS IN PROVIDENCE PUBLIC PROPERTY, YOU'RE PROBABLY GOING TO BE ALL RIGHT IF YOU JUST SET UP AND ARE POLITE. THIS MATERIAL IS NOT INTENDED AS LEGAL ADVICE, OPINION OR DRAFTING, AND IS MEANT FOR EDUCATIONAL PURPOSES ONLY Alan Gordon is a 2012 graduate-with-honours from the UK's University of Buckingham undergraduate law programme, where he topped his graduating Class in Criminology and Criminal Justice. Before starting law school, Gordon was frequently invited by the Bermuda Bar Association to lecture its members on a variety of law topics, for their Continuing Education credit requirements. Gordon was previously convicted of cannabis felonies in GA for activity that is now legal, and was Pardoned in 2010.
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