Except that if i tresspass onto your land (after being duly warned) and scream at you regarding my political beliefs, you are in violation of a criminal statute. possessory rights of private landowners (this is key, this private part) is not trumped by the first amendment (except in california, for different reasons)
assume a cop is right there. you will get arrested. your case will not be thrown out on appeals.
if, however, i was a government and i ran, let’s say, a park, and you went through all the ministerial acts of securing permits to speak at a certain date and time in said park, the police can’t suddenly arrest you for “tresspassing” if i start talking about pot or war.
People have a bare licence to enter your property and knock on the door. The licence is easily revocable ie you revoke the licence as soon as you ask them to leave. At that point they become trespassers if they don’t leave immediately.
(I’m in UK but I would think this will apply to US law as well)
Okay, this is the crux of my OP. Let’s assume, just for argument’s sake, that my jurisdiction has this law/ordinance. I have a huge sign nailed to my door that says “no soliciting, violators will be prosecuted”. A vacuum salesman marches right up and knocks on my door (the door with the sign, no possible way the salesman could not have seen it).
I desire to have this person charged with a crime. What comes next?
You call the police, who will likely ignore you depending on the size of you jurisdiction. Or, if your jurisdiction’s citizen’s arrest laws allow arrest for the type of crime in those circumstances, you can effect a citizen’s arrest and likely have to defend (probably successfully) a civil lawsuit.
No, the presumption is that people impliedly invite people to come up and knock on their doors. You refute this implication by making it abundantly clear that it’s not the case with respect to your property - hanging multiple, obvious “no trespassing” signs and whatnot should do the trick.
edit: obviously if they’re standing outside of your property limits banging a key on your gate it’s not at all clear that you don’t want to entertain requests to enter your property. while the touching of their gate is technically a trespass, you haven’t made it clear that they don’t have a license to do so (a license to get your attention). at least that’s how i’d read it.
A “no solicitors” sign or something similar is probably sufficient to limit the license. Not all jurisdictions make a bare trespass like that criminal though. So there’s a separate issue about whether the police would be helpful or whether you could perform a citizen’s arrest. In most jurisdictions, you could use reasonable force to expel the trespasser, sprinklers might be ok, for example.
For the most part. In the case I cite above, State v. Shack, the property owner wanted to exclude a health worker and a legal aid attorney visiting migrant laborers from his private (i.e., not open to the public) farm. That plainly isn’t on all fours with the case here; the interest in protecting an otherwise isolated and vulnerable community is not present. Nevertheless, the bundle of sticks is a little thinner than in the days when deference to real property title was at its apogee.
Ok, let’s be a little bit better at responding with citations that THAT. :dubious:
Pruneyard says NOTHING about the First Amendment, or even its application to the states via the Fourteenth Amendment. The ability of a person to assert a free speech right at a private shopping center is limited to California, which has a more expansive right to free speech in its constitution. The only issue that touched the federal constitution in that case was an alleged taking under the Fifth Amendment (via the Fourteenth Amendment) by the state, an argument which was summarily dispatched.
So, to summarize, the United States Constitution does not guarantee a private person the right to go onto private property and speek freely. It doesn’t matter if it is a Jehovah’s Witness, a door-to-door salesman, or a garden-variety loon, you don’t have the right to speak freely on someone else’s property. The sidewalk, yes. The street, yes. His front porch? No. (All the “yes” answers subject of course to reasonable limitations on time and place, etc.)
Having said that, the Supreme Court has held (in 1943, with regard to Jehovah’s Witnesses) that a city cannot make door-to-door solicitation illegal. Cases since have waffled on the extent to which a municipality might be able to regulate door-to-door dissemination of political or religious ideas. The rationale, however, was that the individual property owner should be allowed to decide who he does or does not allow on his land. Thus, these cases are not supportive of an assertion that a property owner must allow a door-to-door solicitor, even if that person is engaged in religious efforts.
Thus, the analysis by Markxxx is not very correct.
As I pointed out in the staff report, the police are unlikely to dash right out. If you tell them that you’ve got a trespasser and the guy won’t leave, I suspect they’ll probably come out and pick him up. Citizen’s arrest may or may not be a possibility, depending on the jurisdiction. It’s usually got to be for a felony or breach of the peace.
Is there a legal version of Gaudere’s Law? In any case, you’re wrong that the case didn’t address the federal First Amendment. The case involves the federal First Amendment rights of the property owner as well as the California rights of the speaker.
Oh hell no. Not that I dont agree with you in theory and acceptable practice, but…
I recall a news story recently where some guy sprayed some other guy to get him to leave. He accidently barely sprayed an innocent third party with water (the horror of horrors).
In yet another case of legal justice, he got charged with assault (or something like that) for accidentaly getting someone wet…
