holding that, although Pennsylvania constitution provides more expansive protection of free speech than federal constitution, it does not confer right to solicit signatures for gubernatorial candidate’s nominating petition in privately owned shopping mall
How later courts described this case
- holding that, although Pennsylvania constitution provides more expansive protection of free speech than federal constitution, it does not confer right to solicit signatures for gubernatorial candidate’s nominating petition in privately owned shopping mall
- holding that a private shopping mall was not a public forum, so that individuals had no constitutionally protected right to solicit signatures for political purposes on the premises
- stating that the drafters of our state charter adhered to theories of natural law philosophers
- noting that the drafters of the Pennsylvania Constitution of 1776 adhered to the theories of Locke, Montesquieu, “and other natural law philosophers”
Written by the judges who cited it.
The opinion
NIX, Chief Justice,
concurring and dissenting.
The Opinion Announcing the Judgment of the Court persuasively argues that, unlike its federal counterpart, the Declaration of Rights contained in Article I of our Constitution “assumes their existence as inherent in a man’s nature.” At 30. I join in the conclusion that “[tjhese rights are specifically reserved to the people; each inhabitant of *43 the Commonwealth, ____” (emphasis added). At 31. Thus, the limitation in federal constitutional decisions to matters involving “state action” is not applicable in an analysis where it is alleged that one of these rights conferred under our constitution has been violated. See Hartford Accident and Indemnity Co. v. Insurance Commissioner of Commonwealth, 505 Pa. 571, 585 , 482 A.2d 542, 549 (1984). (Language of Pennsylvania Constitution, not “state action” test, controls its applicability.) To this extent, I am in complete agreement with the view expressed in the Opinion Announcing the Judgment of the Court.
My departure begins with the statement, “[t]he adjustment of these rights among private parties, however, is not necessarily a matter of constitutional dimensions.” At 1335. When it is applied in this situation, where the issue requires a definition of the right in a given context, it is obviously a question of constitutional dimension. Once a constitutional right is recognized, any claim that its protection has been denied requires a determination of the breadth of that protection. The most frivolous claim of an illegal search, denial of free speech, deprivation of due process, etc., still requires decisions with constitutional implications.
This initial disagreement occasions my further departure from the suggested analysis employed by the plurality in adjusting these constitutional disputes between individuals. As recognized in Commonwealth v. Tate, 495 Pa. 158 , 432 A.2d 1382 (1981), a balancing process is required which should attempt to maximize each side’s enjoyment of the respective rights claimed. Such an accommodation requires careful analysis. An implied premise that private ownership must prevail is antithetical to the objective that should be achieved.
Private ownership is a generic term for many different relationships. For instance, it embraces residences, nonprofit ventures, and purely commercial ventures; it also encompasses different levels of public involvement. In this instance we are faced with the type of private ownership *44 which is comparable to the main commercial area in a given community, a place that has traditionally been an accepted forum for the appropriate expression and exchange of ideas, political and otherwise. The mere fact that it is privately owned should not be the controlling factor in the judgment to be made in this decision. Political expression, even though it may be unpopular at any given time, is certainly one of the rights that fall within the penumbra of rights articulated under our Declaration of Rights. When it is established that it is done in an unobtrusive and orderly fashion, without harrassment to those who do not wish to engage in such an exchange, I do not find the basis for concluding that the mere fact that the area is privately owned would necessarily preclude the activity.
Accordingly, I believe that we should direct our trial courts to employ the balancing test in future cases such as these to attempt to accommodate the competing interests.