Saturday, October 28, 2006

Does free speech, like everything else, trump property rights?

Suppose a political candidate sees the crowd, walks into the yard[sale], and begins handing out his brochures. The owner might respectfully ask him to leave. But if he insists upon continuing to express his views, persists, and refuses to leave, is that an example of free speech? Or is it trespass?
ESSAY- Rights fight: Who wins in speech v. property?

Published October 26, 2006 in issue 0543 of the HooK, Charlottesville, Va.
By Tim Hulbert,

"Congress shall make no law ... abridging the freedom of speech..."

"No person shall ... be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation."

We all know– or should know– these sentences. They are cornerstones of our American liberties. Along with the other fundamental human rights masterfully articulated by James Madison and the architects of the Constitution, they protect us from autocratic governmental action.

When there's a contest between two citizens– or two or more basic civil rights– issues can become blurred. But only if we lose the constitutional focus.

For a year now, our community has seen a contest between two citizens-- Richard Collins, an individual, and a group of citizens, the owners/operators of Shoppers' World Shopping Center.

Ostensibly, this is a contest between two basic civil rights: free speech and private property. Both Collins and the Shoppers' World group have grievances. Collins alleges censorship; Shoppers' World claims trespass.

There are few if any people– certainly not Chuck Lebo and the principals of Shoppers' World-- who would deny the right of Rich Collins or any other citizen or group to express their political views and speech on the "village green" or in the "town square."

As Americans we celebrate this basic right. A dozen-- even 1,000-- people have the same right. In the latter case, the local government is required to accommodate peaceful assembly and speech while requiring that the organizers assure the health and safety of participants and onlookers.

Many of us would be outraged if any government sought to shut down such demonstrations of free expression, and the courts would agree with us. Our history-- our heritage-- is to protect the free speech of even such abhorrent groups as Nazis, white supremacists, and people who want to burn the flag and destroy the Constitution. We are strong enough as a nation to allow, protect, and defend public speech-– free from the tyranny of governmental repression.

Now shift over to the property of a private shopping center with the single commercial purpose to accommodate its tenants and their customers. Some citizens and legal activists attempt to make the case that a shopping center open to the general public for commercial purposes has become a modern American equivalent of "the village green."

But-– and as most courts agree-- private property is not the village green.

A wise law professor once said, "A horse is a horse and a cow is a cow. Even if you hang a sign on a horse saying, ‘This is a cow,' it is still a horse. And even if the state legislature passes a law saying that a horse is a cow, it remains a horse."

Consider the case of someone having a garage sale on a lovely spring Saturday morning in central Virginia. Of course the public is invited, one and all, to peruse the "stuff" for sale.

Now suppose a political candidate sees the crowd, walks into the yard, and begins handing out his brochures. The owner might respectfully ask him to leave. But if he insists upon continuing to express his views, persists, and refuses to leave, is that an example of free speech? Or is it trespass?

Almost all of us would see it as trespass.

Fundamentally, private commercial property presents a similar situation. And the Supreme Courts of the Commonwealth of Virginia and of the United States agree.

Private property does not "lose its private character merely because the public is generally invited to use it for designated purposes ..." the U.S. Supreme Court has ruled. "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 ..." Pruneyard Shopping Center v. Robins, 447 US 74, 87–88 (1980).

What would happen if private commercial property were determined to be the legal equivalent of the "village green"? How would the private owners accommodate a group of citizens respectfully demanding to make their political statements?

Would they be guided by rules similar to those that apply to the government? Would there be any reasonable limits on the group's size, the timing of the demonstration, the level of noise, the traffic, the health and safety of the group-- and the center's tenants, employees, customers?

And who would pay for all this? Is it reasonable to assume that customers seeing the crowd would probably drive on to the next center? Should the private property owner be compensated for the cost and/or loss?

Back to the garage sale. Whose rights are violated? Whose are protected?

Rich Collins' participation in our political process is to be applauded. But it's important to remember that his right to free speech has been not denied. Only the location-- on someone else's private property-- is denied.

He and the rest of us can share our views in lots of places. We have, in fact, many "village greens"-- public places, public gatherings, media, and even private property-- where political speech and expression are permitted.

Sometimes the protection of civil liberties can take strange forms. Sometimes it can get a little messy. And sometimes the real civil libertarians in a contest aren't the obvious choices.

It is unfortunate that Chuck Lebo, a decent, dedicated citizen, has been portrayed as a villain for merely defending his constitutionally protected right to limit access to private property.

Defining private property as anything other than private property sets our society on a dangerous course against liberty itself– even in the context of advocating freedom to express political speech.

Let's hope that Virginia's courts stand by their long tradition of respecting and protecting the rights of both free speech and private property.


Albemarle Circuit Court judge Paul Peatross ruled on October 10 that Collins' allegedly sincere, though mistaken, belief that he was allowed to exercise his First Amendment rights and pass out campaign literature at the privately owned Shopper's World-- even after he was repeatedly asked to leave on May 7, 2005-- was enough to "negate criminal intent." Thus Peatross overruled the lower-court trespassing conviction.

Separately, Peatross also dismissed Collins' civil suit against the shopping center. However, with the help of the ACLU and the Rutherford Institute, Collins is pressing an appeal, hoping to make Virginia the seventh state-- along with California, Colorado, Massachusetts, New Jersey, Oregon, and Washington-- to consider shopping centers to be "village squares" for purposes of politicking.--Hook staff

"Land theft proponent invokes free speech defense in trespass conviction", July 20, 2006. Collins' statement supporting last year's Kelo decision and Blair Hawkins' rebuttal and exposition of Collins' record of urban renewal.

"Blair Hawkins Comments on Rich Collins' Community Land Trust Idea", May 11, 2005

We all want to help somebody. It makes us feel good.

And if our help makes things worse, at least we can say our intentions were noble. Then decades later, we can take pride in our good deeds and further propose the same programs that failed a generation ago and hope nobody remembers.

This is my take on Rich Collins, chairman of Charlottesville's urban renewal agency in the 1970s and current candidate for House of Delegates 57th district. I have to give Mr. Collins credit: he is bold. I wouldn't have the nerve to support programs that bring us the achievement gap.

Here is Mr. Collins bold new idea:

"A CLT [Community Land Trust] allows a non-profit or public entity to acquire land and then develop it for low and moderate income housing. A 99 year lease for the land at no cost, or low cost, allows the owner of the housing to acquire it an affordable rate. (Land prices are a major reason that housing prices are rising.) The owner of a house on CLT owned land has the attributes of ownership which we most value: security of tenure, privacy, and the ability to bequeath the lease and house to others. If the owner, however, decides to sell the house, the CLT has the right to buy it. The owner will be paid for improvements and some percentage of the increase in capital value, but the CLT, which owns the land, and has a long term interest in affordability, has the means to keep the unit affordable for another low income buyer. . The CLT concept provides a creative compromise between home ownership and affordable ownership over the long term."

Here are my concerns:

(1) How will the land be acquired? Given his background, Collins would likely support use of eminent domain to acquire the land. But he doesn't describe the process or address eminent domain fears of city residents and property owners. He leaves out this part as if to imply that the affordable housing goal is so lofty that any means necessary is justified. The U.S. Supreme Court is expected to rule in June whether it's Constitutional to use eminent domain to take land for the purpose of transferring ownership. Last session, 40 eminent domain related bills were offered in the General Assembly. I'd hate to see Charlottesville send to Richmond someone who would make it easier for your property to be taken away.

(2) Why can't a private, for-profit entity participate in a CLT? What special status must a developer possess in order to build affordable homes? Non-profits suffer from a credibility problem from the start because its profits (donations to salaries, operating expenses, surplus reinvested in the company) are exempted from the burden of taxation. Then it's a short road to believing you're exempted from all laws. If you're not specifically exempted, you can petition government and surely be exempted. You can also ask for corporate welfare in the form of grants and not even blush. In the recent city budget process, at a council meeting, someone asserted that the subsidy increases being requested by local charities (MACAA, JABA and others) were for pay raises, not to provide a new service or buy more food, for example. If charity is your source of income, you face a major conflict of interest.

(3) How can you be a homeowner and not own your home? If you have a 99 year lease, do you own anything? Can you cash out equity in your largest investment? Can you bequeath the property to anyone or does a bureaucrat have to verify that the transfer is within the rules? Can you put up the house as bond to get your child or grandchild out of jail? What other rights and privileges would you have to give up in order to take advantage of the trust?

How does a CLT connect to the achievement gap? The gap has two parts: People don't believe you can achieve so they don't give you opportunities or ever accept you as an equal. You don't believe you can achieve so you don't try to prove them wrong. After all, why should you work so hard? The slave master owns the land but lets you sharecrop as long as you profit less than the master, as long as the master has more rights than you. Well, you do have to live somewhere.

Why would Mr. Collins propose a program that does not seek to elevate low and moderate income people to full citizenship, equal rights, and equal treatment? Why should poor people not be able to profit from their investments just as their affluent neighbors do? If you want your children to grow up expecting to be denied full participation, "buy" a house in a government-owned "neighborhood." The poverty industry needs rethinking and reinventing, not retooling and repackaging.

Here's my idea. 15 minutes a day -- a house in 15 years. No matter where you work, keep a daily work journal. Keep track of your own time, duties, contacts. Verify that your pay is the correct amount. Writing a resume becomes easy as pie: just look through your journal and pick out the relevant accomplishments. Take ownership of your career by documenting it. Organize your bills, expenses, rent receipts. If you can record and document your work, you become more valuable as the documentation grows.
As your writing skills improve, begin to charge more money. (Remember: the employee sets the wage, not the

Then one day, when you're ready, take some of this documentation to a bank and ask for a loan to buy a house. Shop around for a used house or condo. Then begin paying a mortgage just as you've been paying rent all these years. This way, if property values go up, you can benefit fully. You can sell the house anytime to anyone (owner sets the price, not the buyer) and not have to share the crops with a slave master who "helped" you 15 years ago.


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