Cologne v. Westfarms Associates

469 A.2d 1201, 192 Conn. 48, 1984 Conn. LEXIS 501

• Court: Supreme Court of Connecticut
• Decided: January 17, 1984
• Docket: 12059
• Status: Published

Opinions

Shea, J.

The principal question presented by this appeal is whether a court of this state may direct that the rights of free speech and petition in our state constitution may be exercised upon private property consisting of a large regional shopping center, contrary to the wishes of its owners. We conclude that it may not and vacate the judgment which contained such a decree.

The plaintiffs are the Connecticut National Organization for Women (hereinafter NOW) and one of its members, Christine A. Cologne, who are interested in promoting the rights of women through education and governmental action. The defendants are a partnership, Westfarms Associates (hereinafter Westfarms), which owns a large retail shopping center located partly in West Hartford and partly in Farmington, known as the Westfarms Mall (hereinafter Mall), the individual partners and the person¹ who operates the Mall on behalf of his employer, the Taubman Company, which has contracted to manage the property for the owners.

The Mall consists of four connected buildings which house under one roof approximately 120 retail businesses occupying 407,200 square feet of space and several major department stores containing about 500,000 square feet. All of these establishments are connected by common passageways. At each end of the building complex there is a courtyard area with seating accommodations designed to allow patrons of the Mall to relax while shopping. A similar “grand court” of 14,000 square feet is located approximately in the center. The passageways and courtyard areas are situated within this building and are protected from the weather. Westfarms permits and sponsors various activities to be conducted in the grand court, such as health clinics, volunteer tax assistance facilities, informational programs, exhibitions, fashion shows and concerts.

The Mall is served by several major traffic arteries, including interstate highway 1-84, and it provides a parking area sufficient for 5000 cars. Several bus lines regularly provide public transportation to the Mall from surrounding communities. Approximately 5000 people patronize the Mall each day from Monday to Friday and on weekends approximately 10,000 do so. Those numbers double during the Christmas holiday shopping season. There are also 2000 people working at the Mall throughout the year, and an additional 1000 during the Christmas shopping season. There are no public streets or sidewalks within the building complex, adjacent thereto or within the parking areas.

About May 25,1981, the plaintiffs sought permission from the company which operates the Mall to solicit persons visiting the shopping center to sign petitions in support of the equal rights amendment (ERA) to the federal constitution. The request was denied and the plaintiffs were advised that to allow such activities was contrary to the written policy of the defendants. The plaintiffs thereafter commenced a suit seeking injunc-tive relief for the purpose of enabling them to obtain signatures in support of ERA on the Mall premises.

On January 4,1982, judgment was rendered, Bieluch, J., for the plaintiffs requiring the defendants to provide a location in the grand court of the Mall where the plaintiffs could conduct their petitioning activities in support of ERA under specified conditions until that amendment was ratified or until July 1,1982, the deadline established for such ratification. Cologne v. Westfarms Associates, 37 Conn. Sup. 90, 114-17, 442 A.2d 471 (1982) (Cologne I).

Soon after this injunction had expired in accordance with its terms, the plaintiffs brought the present action, the defendants having refused a further request to continue any solicitation activities at the Mall. In their complaint the plaintiffs sought to enjoin the defendants from preventing them from soliciting signatures on petitions and from distributing informational literature upon the common areas of Westfarms Mall without any limitation as to subject matter. On March 2, 1983, the trial court, Spada, J., rendered a judgment enjoining the defendants during the period of January 1 through September 30 of each year from “prohibiting the plaintiffs’ solicitation by voice, signs and descriptive materials of signatures on petitions in support of legislation pertaining to: (1) Aid to Families of Dependent Children; (2) Pay Equity Between the Sexes; (3) Sex Discrimination in Insurance Contracts; (4) Enforcement of Child Support Orders; and (5) Renewal of the Commission on Human Rights and Opportunities, at a single location in the Grand Court of the Mall to be designated by the defendants.” This order was made subject to numerous conditions² regulating the time, place and manner in which the plaintiffs should conduct their activities, including a restriction confining the use of signs, descriptive materials and petitions, to the five issues specified. Both the plaintiffs and the defendants have appealed from this judgment.

The plaintiffs did not actually gain access to the Mall for the purpose of conducting their activities until April 23,1983.³ From that date until November 1,1983, the plaintiffs have conducted their activities in the grand court of the Mall in accordance with the conditions set forth in the judgment, except for a period of two weeks. They have observed both the content restriction and the time limitation imposed by the injunction order which are the basis for their appeal from that judgment.

While the plaintiffs’ initial appeal was pending, the defendants sought a dissolution of the injunction granting access to the plaintiffs. The defendants’ claim there focused on an incident occurring on Sunday morning, May 22,1983, involving an attempt by members of the Ku Klux Klan to make an appearance at the Mall after their demand for access had been denied by the defendants.⁴ On that day, the defendants, with the assistance of members of the police forces of West Hartford and Farmington, barred them from entering the Mall. After their departure, however, a number of anti-Klan demonstrators, who had been attracted by the report of the intended appearance of the Klan, engaged in a heated demonstration outside the Mall building. Police from several area towns and the state police were needed to bring the situation under control. This demonstration resulted in the closing of some of the stores in the Mall for a portion or for the remainder of that day. It is clear that none of the groups or individuals involved in the disturbance was concerned in any manner with the plaintiffs, who were not at the Mall premises at the time.

The circumstances of this disturbance were relied upon by the defendants in their motion to dissolve the injunction granting access to the plaintiffs. After an evidentiary hearing, the court, Ripley, J., concluded that to allow access to the interior of the Mall building by many organizations seeking to exercise the same privileges afforded to the plaintiffs by the injunction would create a highly dangerous situation which the police would be unable to control. Accordingly, the injunction was modified by limiting the location where the plaintiffs could conduct the activities permitted under the first judgment to the exterior of the building under a portico at one of the entrances. The plaintiffs and the defendants have amended the appeal and cross-appeal from the first judgment to include their claims of error relating to the order modifying the injunction. The plaintiffs claim that the court had no power to modify the injunction while an appeal was pending and that the circumstances of the disturbance, which were wholly unrelated to their activities, did not warrant any modification of its terms. The defendants claim that the court should have dissolved the injunction rather than modify it.

The issues presented by this appeal have an intricate background. In Lloyd Corporation v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972), the Supreme Court of the United States rejected the contention that a privately owned retail shopping center was the functional equivalent of the business district of a municipality upon which expressive activity protected by the first amendment to the federal constitution might be conducted as freely as upon a village green. The court found inapplicable the rationale that where a private enterprise performs the role of a municipality it comes under the same strictures which bind governmental agencies. See Marsh v. Alabama, 326 U.S. 501, 507-508, 66 S. Ct. 276, 90 L. Ed. 265 (1946). The court distinguished Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 318, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968), where picketing by a union against one of the stores in a shopping center had been permitted, on the ground that such expressive activity was related only to the dispute between the employer and the workers involved. This distinction was later seen to constitute discrimination in the regulation of free expression on the basis of its content and Logan Valley Plaza was overruled. Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976); see Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). It is clear that if the plaintiffs’ asserted right to conduct their activities on the defendants’ property depended entirely on federal constitutional provisions, they could not prevail. They do not claim otherwise.

The refusal to extend federal constitutional protection to expressive activity on private property left unresolved the question of whether such conduct might be protected by parallel state constitutional provisions. Federal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982) ; Paris Adult Theater, Inc. v. Slaton, 413 U.S. 49, 64, 93 S. Ct. 2628, 37 L. Ed. 2d 446, reh. denied, 414 U.S. 881, 94 S. Ct. 27, 38 L. Ed. 2d 128 (1973); State v. Ferrell, 191 Conn. 37, 45 n.12, 463 A.2d 573 (1983) ; Griswold Inn, Inc. v. State, 183 Conn. 552, 559 n.3, 441 A.2d 16 (1981); Fasulo v. Arafeh, 173 Conn. 473, 475, 378 A.2d 553 (1977); Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977). In recognition of this principle, the Supreme Court of the United States in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980), although reaffirming its view that there was no federal basis for a right of access to a private shopping center for the purpose of expressive activity, held that the California courts were at liberty to construe that state’s constitutional guaranty of freedom of speech to require such access, and that no violation of federally protected property rights or first amendment rights of the owners had occurred.

This invitation to state courts to construe state constitutional guaranties to enhance freedom of expression above the minimum federal constitutional level in the context of access to shopping centers for political propagandizing efforts has occasioned some remarkably close divisions of opinion among the judges who have considered the matter.⁵ Robins v. Pruneyard, Shopping Center, 23 Cal. 3d 899, 592 P.2d 341,153 Cal. Rptr. 854 (1979); Batchelder v. Allied Stores International, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983); Woodland v. Michigan Citizens Lobby, 128 Mich. App. 649, 341 N.W.2d 174 (1983); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981); Alderwood Associates v. Washington Environmental Council, 96 Wash. 2d 230, 635 P.2d 108 (1981). Both the California and Washington decisions rely in part upon the highly significant role which initiative, referendum and recall sponsored directly by the citizenry have played in the constitutional schemes of those states, and the practical importance of access to large congregations of voters in order to obtain signatures on petitions used to implement those rights. The Massachusetts decision was expressly limited to the solicitation of signatures needed by political candidates for access to the ballot and relied, not upon its freedom of speech provision, but upon a state constitutional guaranty of “ ‘an equal right to elect officers and to be elected, for public employments.’ ” Batchelder v. Allied Stores International, Inc., supra, 97.

In a somewhat different context, where private universities have attempted to enforce their bans upon campus solicitation without permission, two state courts have construed their criminal trespass statutes, in the light of state constitutional free speech guaranties, to be inapplicable to the dissemination of political ideas upon the grounds of private education institutions. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980). The concern of the Pennsylvania Supreme Court in Tate was that a college which had sponsored the presentation of one speaker’s views upon a subject should invoke a standardless permission requirement to prevent others from expressing opposing views upon an area of the campus normally open to the public. Similarly, in Schmid the New Jersey Supreme Court, in finding that electioneering activity upon a college campus could not support a conviction for criminal trespass under the state constitution, focused upon the absence of reasonable standards regulating the granting or withholding of permission to persons seeking to communicate their political viewpoints as well as upon the inconsistency of banning such communication with the general university policy of encouraging political debate.

The provisions of our Connecticut constitution upon which the plaintiffs rely are §§ 4 and 14 of article first, which is entitled “Declaration of Rights.” Section 4 provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Section 14 provides: “The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.” A closely related provision of this article is § 5: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.” The language of these sections has remained unchanged since the adoption of our first state constitution in 1818. They appear to be almost an exact replica of corresponding sections of the Mississippi constitution which had been adopted the previous year.⁶ The freedom of speech provisions of §§ 4 and 5 are quite similar to the corresponding state constitutional provisions of California, Washington, Pennsylvania, New Jersey, North Carolina and Michigan. Calif. Const., Art. I, § 2; Wash. Const., Art. I, § 5; Pa. Const., Art. I, § 7; N.J. Const., Art. I, § 6; N.C. Const., Art. I, § 14; Mich. Const., Art. I, § 5.

The history of the adoption of our Connecticut bill of rights⁷ indicates that it was a response to the prevailing political sentiment of that time that the basic liberties of the people should be enshrined in a written constitution to ensure their protection from governmental infringement. See New York Times Co. v. United States, 403 U.S. 713, 715 n.1, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971); C. Rossiter, 1787 The Grand Convention (1966) pp. 302-303; Howard, The Road from Runnymede (1968) pp. 223-24. An opposing view was expressed that such a detailed specification of individual rights was superfluous and tended to abridge them, because all governmental powers not granted by the constitution were reserved to the people. Connecticut Journal, Sept. 8, 1818, p. 2, col. 1 (Remarks by Governor John Treadwell) (Remarks by Judge Mitchell). This debate parallels that which occurred at the time of the adoption of our federal constitution and the subsequent enactment of the first ten amendments thereto, our bill of rights. A. Hamilton, “The Federalist,” No. 84.⁸

It is evident that the concern which lead to the adoption of our Connecticut Declaration of Rights, as well as the bill of rights in our federal constitution, was the protection of individual liberties against infringement by government. Tribe, American Constitutional Law (1978) p. 1147 n.1; see United States v. Guest, 383 U.S. 745, 771, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966) (Harlan, J., concurring in part, dissenting in part); State v. McKee, 73 Conn. 18, 27-29, 46 A. 409 (1900); Norwalk Street Ry. Co.’s Appeal, 69 Conn. 576, 586-89, 37 A. 1080 (1897); State v. Conlon, 65 Conn. 478, 489, 33 A. 519 (1895); see generally Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 94-97 (1982); Berdon, “Protecting Liberty and Property under the Connecticut and Federal Constitutions: The Due Process Clauses,” 15 Conn. L. Rev. 41, 53-54 (1982); Purcell, Connecticut in Transition, supra. There is nothing in the history of these documents to suggest that they were intended to guard against private interference with such rights. Similarly, a review of their origin discloses no evidence of any intention to vest in those seeking to exercise such rights as free speech and petition the privilege of doing so upon property of others.

This court has never viewed constitutional language as newly descended from the firmament like fresh fallen snow upon which jurists may trace out their individual notions of public policy uninhibited by the history which attended the adoption of the particular phraseology at issue and the intentions of its authors. The faith which democratic societies repose in the written document as a shield against the arbitrary exercise of governmental power would be illusory if those vested with the responsibility for construing and applying disputed provisions were free to stray from the purposes of the originators. “If the words have a doubtful meaning, or are susceptible of two meanings, they should receive that which will effectuate the intent of the framers of the Constitution and the general intent of the instrument.” Borino v. Lounsbury, 86 Conn. 622, 625, 86 A. 597 (1913).

The plaintiffs rely upon the fact that the right of free speech in § 4: “Every citizen may freely speak . . .” and of petition in § 14: “The citizens have a right . . . to apply to those invested with the powers of government ... by petition . . .” are expressed in affirmative language creating such rights rather than as prohibitions upon the government like those contained in § 5: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press” and in the first amendment to our federal constitution: “Congress shall make no law . . . abridging the freedom of speech ... or to petition the Government for a redress of grievances . . . .” We are not persuaded that these variations in phraseology are sufficient to indicate an intention to allow those rights to be exercised upon every property affording a suitable opportunity for their enjoyment against the objections of the owners. Although the guaranty of equal protection in § 20 of the Connecticut Declaration of Rights is stated in absolute terms similar to §§ 4 and 14, unlike its federal counterpart, § 1 of the fourteenth amendment, which is expressly directed against state action only, this court has concluded that both these provisions “are designed as a safeguard against acts of the state and do not limit the private conduct of individuals or persons.” Lockwood v. Killian, 172 Conn. 496, 501, 375 A.2d 998 (1977). There is no historical basis for reaching a different conclusion in respect to the scope of §§ 4 and 14.

The plaintiffs advance a further argument that to restrict the protection of free speech afforded by § 4 solely to instances of state interference would make that provision merely redundant of § 5, which is expressly directed against the state. Section 5, however, literally applies only to the passage of laws restraining freedom of speech or press and does not by its terms afford protection provided by § 4 against restrictions upon the exercise of those rights which government officials may impose whether or not sanctioned by law.⁹

Despite the unqualified language of §§ 4 and 14, the plaintiffs do not maintain that the rights referred to therein are so absolute that they can lawfully be exercised anywhere, as a kind of public easement upon all privately owned realty for use as a political forum. Their claim is presently limited to the large regional shopping center operated by the defendants which, they contend, has assumed a uniquely public character by virtue of its great economic, social and cultural impact upon the community. We are unable, however, to discern any legal basis distinguishing this commercial complex from other places where large numbers of people congregate, affording superior opportunities for political solicitation, such as sport stadiums, convention halls, theatres, country fairs, large office or apartment buildings, factories, supermarkets or department stores.

The plaintiffs wish to have us balance the importance of the rights of free speech and petition which they seek to exercise against the interest of the defendants in controlling and operating their private property. The trial court, Spada, J., concluded that experience during the six months that the plaintiffs had conducted their activities at the Mall pursuant to the injunction issued in Cologne I, Bieluch, J., demonstrated no substantial impact upon the revenues or business expectations of the defendants. As a result of the violent confrontation which occurred on May 22, 1983, however, the court, Ripley, J., found that there was a serious potential for harm to the interests of the defendants if the plaintiffs continued to use the interior of the Mall for their activities because of the efforts of other groups to enjoy the same privilege. The injunction was modified accordingly to restrict the plaintiffs to an exterior entranceway. It is not the role of this court to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication. That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of constitutional rights by some in diminution of those of others. Some of these complexities have been demonstrated in the present case by the events of May 22, 1983, which, for that day at least, unquestionably disrupted the normal flow of business at the Mall and exposed the defendants to substantial risks of property destruction and liability to persons who might have been injured. Unlike first amendment liberties which occupy a preferred status in our constitutional framework; Marsh v. Alabama, 326 U.S. 501, 509, 66 S. Ct. 276, 90 L. Ed. 265 (1946); Lockwood v. Killian, supra, 502; State v. McKee, supra, 27-28; property rights or economic interests have long been regarded as subject to reasonable regulation in promotion of the general welfare. For the court to assume such a regulatory function, however, would relegate the legislature to a subordinate role in our governmental scheme. Statutes would become largely obsolete if courts in every instance of the assertion of conflicting constitutional rights should presume to carve out in the immutable form of constitutional adjudication the precise configuration needed to reconcile the conflict. If, as the plaintiffs contend, the development of large surburban shopping centers has greatly diminished opportunities for political advocacy in the public streets of downtown areas and other public places, the problem should be presented to the legislature. We cannot presume that that body has any less concern for political liberty than this court.

As we have noted, the plaintiffs have not taken the extreme position which a literal reading of §§ 4 and 14 of article first might arguably warrant, that people seeking to exercise rights of free speech and petition have a constitutional right to do so wherever and whenever they please, but limit their claim to properties vested with a public character. Although we are under no legal constraint to follow Lloyd Corporation v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972), we approve the rejection in that decision of such a claim as applied to a shopping center: “Nor does property lose its private character merely because the public is generally invited to use it for designated purposes. . . . The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.” Id., 569. If the furnishing of building permits, police protection and public transportation were deemed to constitute sufficient government involvement to transform the actions of the defendants in refusing the plaintiffs’ requests into those of public officials, as the dissenting opinion assumes, almost every improved property would be subject to the same burden the plaintiffs seek to impose upon the Mall.

There is no error on the plaintiffs’ appeals; there is error on the defendants’ cross-appeal from the original judgment and the case is remanded with direction to render judgment for the defendants.

In this opinion Healey and Covello, Js., concurred.

1 This defendant was ordered dropped as a party on October 19, 1982.

2 The full text of the order was as follows:

“Now, therefore, it is hereby ordered that during the annual period of January 1 through September 30, the defendants shall be, and hereby are restrained and enjoined from prohibiting the plaintiffs’ solicitation by voice, signs and descriptive materials of signatures on petitions in support of legislation pertaining to: (1) Aid to Families of Dependent Children; (2) Pay Equity Between the Sexes; (3) Sex Discrimination in Insurance Contracts; (4) Enforcement of Child Support Orders; and (5) Renewal of the Commission on Human Rights and Opportunities, at a single location in the Grand Court of the Mall to be designated by the defendants, on the following terms and conditions:

“(1) The plaintiffs will conduct their activities every Saturday during normal business hours, unless such schedule interferes with Mall sponsored activities, in which event a substitute day in close proximity thereto will be offered by the defendants. Should the plaintiffs wish to suspend their activity on any Saturday or other allowed day, they will promptly notify the center manager.

“(2) The plaintiffs will supply a card table not to exceed three feet by six feet in size, no more than four chairs, and a proper receptacle for litter, but the defendants, at their option, may offer to substitute their property for any or all of such furniture.

“(3) The plaintiffs will be allowed to post two signs, not to exceed two feet by three feet in size, on or adjacent to their table announcing their presence and purpose.

“(4) The plaintiffs will be confined to the center or grand court in the immediate area of their table and chairs and to the space within ten feet of their table.

“(5) The plaintiffs will confine their activities to the authorized area and will not expand into the remaining space of the grand court, or use the walkways, entranceways, exits, parking lots or other common areas of the Mall for their permitted activities.

“(6) The plaintiffs will have no more than four persons engaged in the permitted activities within the authorized area.

“(7) The plaintiffs will maintain a normal conversational tone, and will not use any amplifying sound, recording, radio or TV equipment.

“(8) The plaintiffs will refrain from: (a) verbally inviting patrons to their table and authorized area; (b) approaching patrons outside the authorized area; (c) physically obstructing or verbally interfering with patrons; and (d) restricting in any other way the free movements of patrons and shoppers on the premises.

“(9) The plaintiffs will not be allowed to distribute membership applications, or to solicit membership applications, fees, funds, donations or contributions, but materials distributed in support of the permitted activities may contain instructions for off-premises voluntary participation in membership application and financial support of the plaintiffs’ activities.

“(10) No eating or drinking by plaintiffs’ personnel will be permitted at their table or within the court area or surrounding walkways.

“(11) The plaintiffs will allow no litter to be discarded in the area of the grand court other than in waste receptables, and will periodically police and clean all litter in the walkways of the Mall resulting from materials distributed by them, and for this purpose will not be limited in the number of their personnel allowed on the premises.

“(12) The defendants will instruct their security force to protect all rights, persons and property of the plaintiffs in connection with their permitted activities.

“(13) The defendants will be allowed to post signs with noncontroversial texts, the number, size and location to be at their discretion, disavowing and disclaiming any endorsement, sponsorship or support of the plaintiffs’ presence, activities, purpose and goals.

“(14) The plaintiffs’ permitted activities shall be subject to such further reasonable regulations as to time, place and manner as the defendants may prescribe to assure that the plaintiffs do not interfere with the movement and rights of owners, operators, patrons, shoppers and occupants of the shopping center and to minimize any possible interference of the plaintiffs with the commercial functions of the Mall.

“(15) All authorized signs, descriptive materials and petitions shall be confined to the five content issues recited in the court’s restraining order hereinabove.

“(16) Upon reasonable request, the plaintiffs shall provide to the defendants copies of descriptive materials and individual unsigned petitions in support of the permitted activities.”

3 The trial court, after a hearing on March 22,1983, terminated any stay which may have resulted from the defendants’ appeal. See Practice Book § 3065; cf. General Statutes § 52-477. Upon a motion for review of that order this court denied relief. In the interim, the trial court had found the defendants in contempt for refusal to comply with the injunction and imposed a coercive order of compliance subject to penalties.

4 Following the decision of the trial court awarding the plaintiffs access to the Mall for the purpose of political advocacy, several other groups sought entry in order to obtain public support of their views upon such topics as abortion, anti-semitism, racism, nuclear weapons, property rights and the court system. The defendants refused these requests, but two such organizations entered the Mall and distributed leaflets without asking or receiving permission. When the defendants contacted the police to arrest or remove the persons involved as trespassers, the police refused to take such action. Prior to the announcement of the trial court’s decision, however, their policy had been to arrest persons distributing leaflets at the Mall who refused to desist upon request. Both the West Hartford and Farmington police departments had obtained legal advice not to arrest such persons as trespassers because the grant of access to the plaintiffs by the trial court required that other groups be afforded similar rights.

5 The decision of the California Supreme Court which was the subject of Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980), was reached on a vote of four to three. Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 916, 592 P.2d 341, 153 Cal. Rptr. 854 (1979). The Washington Supreme Court, in finding the constitution of that state to afford a right of access to a private shopping center for petitioning activity, was divided five to four. The Massachusetts Supreme Judicial Court was split four to three in reaching a similar result. The opposite conclusion was arrived at by the Michigan Court of Appeals, an intermediate appellate court, by a two to one division. The Supreme Court of North Carolina, however, was unanimous in finding no such right of access to exist by virtue of the constitution of that state.

6 Richard Purcell, Connecticut in Transition: 1775-1818 (2d Ed. 1963) p. 240; Connecticut Journal, Sept. 1, 1818, p. 3, col. 1.

7 See Purcell, Connecticut in Transition: 1775-1818 (2d Ed. 1963) pp. 241-42; Trumbull, Historical Notes on The Constitutions of Connecticut (1901 Ed.) pp. 55-56.

8 In this publication Hamilton argued: “I go further, and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted; for why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” A. Hamilton, “The Federalist,” No. 84.

A similar argument was advanced by Governor John Treadwell at the convention which approved the Connecticut constitution in 1818. Connecticut Journal, Sept. 8,1818, p. 2, col. 1; see generally Purcell, Connecticut in Transition: 1775-1880 (2d Ed. 1963); Trumbull, Historical Notes on The Constitutions of Connecticut (1901 Ed.).

9 The issue of the redundancy of § 4 in view of § 5 was debated at the constitutional convention of 1818: “Mr. Treadwell, would leave out all the article — he considered the whole purpose of it answered in the next section.

“Mr. Bristol, could not agree with gentlemen, that the article was of no importance. Every citizen has the liberty of speaking and writing his sentiments freely, and it should not be taken away from him; there was a very great distinction between taking away a privilege, and punishing for an abuse of it — to take away the privilege, is to prevent a citizen from speaking or writing his sentiments — it is like appointing censors of the press, who are to revise before publication — but in the other case, every thing may go out, which the citizen chooses to publish, though he shall be liable for what he does publish — we are not to adopt the principles of a Star Chamber-Court, the Sec. was important; it was the very one which he wished to see incorporated — Some further remarks were made by Mr. Bristol, and Mr. Pitkin, and the Sec. was approved and accepted.” Connecticut Courant, Sept. 8, 1818, p. 3, col. 1.

The remarks of Mr. Bristol may be construed to indicate that he viewed § 4 (then § 6) as a limitation on § 5 (then § 7) which would authorize the passage of laws or the application of the common law with respect to defamation or sedition, but which would preclude any prior restraint. See State v. McKee, 73 Conn. 18, 28-29, 46 A. 409 (1900). A broader proposal which prohibited the molestation of any person for his opinions on any subject whatsoever was considered at the convention but rejected. Id.