City of West Des Moines v. Engler

641 N.W.2d 803, 2002 Iowa Sup. LEXIS 54, 2002 WL 537133
CourtSupreme Court of Iowa
DecidedApril 3, 2002
Docket00-0147
StatusPublished
Cited by5 cases

This text of 641 N.W.2d 803 (City of West Des Moines v. Engler) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of West Des Moines v. Engler, 641 N.W.2d 803, 2002 Iowa Sup. LEXIS 54, 2002 WL 537133 (iowa 2002).

Opinion

CARTER, Justice.

Defendants, Paul Engler and Deborah Helt, have been granted discretionary review of their simple-misdemeanor convictions for trespassing in violation of West Des Moines, Iowa Ordinance 5 — 2—2—3(b) (1998). They contend that their actions were protected as a right of free speech guaranteed by article I, section 7 of the Iowa Constitution. After reviewing the record and considering the arguments presented, we conclude that the distribution of leaflets in a privately owned shopping mall is not an activity protected as a right of free speech. Consequently, we affirm the judgment of the district court.

On December 24, 1998, defendants gathered with others near the entrance to the J.C. Penney store in the Valley West Mall and attempted to distribute leaflets to mall patrons. The leaflets were entitled “Sweatshop Products Sold at J.C. Penney, Van Heusen Grinch Steals Christmas in Guatemala” and contained therein were statements urging mall patrons to contact the Phillips-Van Heusen Corporation and the J.C. Penney store manager.

Mall safety officers requested that the defendants cease the distribution of the leaflets in the mall and move their protest to the public street surrounding the mall. Despite the request, defendants continued to distribute the leaflets. West Des Moines police officers made a second request that defendants cease distribution of the leaflets, but that request was also refused. Defendants were then arrested on charges of criminal trespass. The charges were submitted at a bench trial on stipulated facts. A district associate judge found defendants guilty of trespassing in violation of the local ordinance. Defendants next appealed to a district judge, who upheld their convictions.

Defendants assert that their convictions violate the right of free speech guaranteed to them by article I, section 7 of the Iowa Constitution. Their appeal is predicated entirely on state constitutional law. Undoubtedly, that path has been taken because the United States Supreme Court has rejected similar free-speech claims based on the First Amendment to the federal constitution. See Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131, 143 (1972). A substantial impediment also confronts defendants’ free-speech claims under the state constitution as a result of our decision in State v. Lacey, 465 N.W.2d 537, 540 (Iowa 1991).

In Lacey union members were convicted of criminal trespass for distributing on the premises of a restaurant handbills that urged potential customers to boycott that establishment. In rejecting the defendants’ claims that their activities were protected by the free-speech guarantees of the federal and Iowa constitutions, we discussed in detail the Lloyd decision of the *805 Supreme Court, which foreclosed their federal free-speech claims and then declared “[w]e conclude that defendants’ free-speech argument must fail under both the federal and Iowa Constitutions.” Lacey, 465 N.W.2d at 540.

Defendants urge that our Lacey decision is not conclusive of their free-speech rights under the Iowa Constitution because the argument they are making is premised on specific constitutional language not considered by this court in the Lacey opinion. Defendants note that the material portions of article I, section 7 of the Iowa Constitution provide:

Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. [The balance of this clause pertains to the elements of actions for libel.]

Defendants argue that the first sentence in section 7 operates entirely independently from the second sentence and that the free-speech guarantee provided in the Iowa Constitution is not limited to abuses by state action. An argument similar to the one that defendants are making was presented to the Minnesota Supreme Court in State v. Wicklund, 589 N.W.2d 793 (Minn.1999), in a ease involving protests against the fur trade at the Mall of America. The language of the Minnesota Constitution guaranteeing freedom of speech was nearly identical with that of the Iowa Constitution, which we have quoted. The Minnesota Supreme Court concluded that the constitutional language at issue here is, like its federal First Amendment counterpart, designed to protect against state action.

The Minnesota court in Wicklund noted that the language of the free-speech guarantees contained in the Iowa and Minnesota constitutions are not unique. At that time, the bills of rights of thirty-three other states contained language nearly identical to the Iowa and Minnesota free-speech guarantees. Wicklund, 589 N.W.2d at 799. A substantial majority of the courts in those states have interpreted this free-speech language as being coextensive with that of the First Amendment to the federal constitution. See Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz. 371, 767 P.2d 719, 723 (1988); Citizens for Ethical Gov’t, Inc. v. Gwinnett Place Assocs., 260 Ga. 245, 392 S.E.2d 8, 9-10 (1990); People v. DiGuida, 152 Ill.2d 104, 178 Ill.Dec. 80, 604 N.E.2d 336, 344-45 (1992); Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337, 347 (1985); Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131, 138 (2001); S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243, 251 (Nev.2001); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 498 N.Y.S.2d 99, 488 N.E.2d 1211, 1215 (1985); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708, 712 (1981); Eastwood Mall, Inc. v. Slanco, 68 Ohio St.3d 221, 626 N.E.2d 59, 62 (1994); Stranahan v. Fred Meyer, Inc., 331 Or. 38, 11 P.3d 228, 243 (2000); W. Pennsylvania Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331, 1339 (1986); Charleston Joint Venture v. McPherson, 308 S.C. 145,

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641 N.W.2d 803, 2002 Iowa Sup. LEXIS 54, 2002 WL 537133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-west-des-moines-v-engler-iowa-2002.