September 18, 2017
By: Melissa Chapaska
The citizens have a right in a peaceable manner to assemble together 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.
– Pa. Const. Art. I, Sec. 20
Based on the right of subjects to petition the king, the right to petition and the right to assemble guaranteed by Article I, Section 20 of the Pennsylvania Constitution are complementary rights, with the right to petition providing citizens with the right to communicate their thoughts and opinions to those in power, and the right to assemble oftentimes the vehicle for this communication.
The most recognizable example of this interplay of the rights to assemble and petition is protests. For instance, the 2017 Women’s March saw citizens exercise their right to assemble in Washington D.C. and in flagship marches throughout the nation, including Pennsylvania, in order to exercise their right to petition by advocating for legislation and policies related to women’s rights, immigration reform, healthcare reform, workers’ rights, and other controversial issues. Without the right to assemble, the government could have prohibited the marchers from gathering on public property or in large numbers, essentially giving the government the power to silence the protesters’ grievances or prohibit the message from reaching those in power. Similarly, without the right to petition, the right to assemble is substantially restricted, with the government able to prohibit groups of citizens from conveying their message to those in power. Without both the right to assemble and the right to petition, the power of protesting would be rendered impotent.
Unlike the federal courts, which consistently apply a strict scrutiny standard to cases brought under the United States Constitution, Pennsylvania courts do not consistently apply strict scrutiny to Article I, Section 20 issues. Rather, Pennsylvania courts apply different standards depending on the types of interests implicated, such as when the rights to assemble and petition collide with the right to possess and protect real property.
Article I, Section 1 of the Pennsylvania Constitution provides for the “inherent and indefeasible right” for a citizen to acquire, possess and protect his or her property. However, the right to possess and use property is not absolute – particularly when citizens claim a right to assemble on private property.
In this installment of Pennsylvania Appellate Advocate’s Constitution Week series, we examine Pennsylvania courts’ approach to state constitutional claims that implicate both the Article I, Section 20 rights to assemble and petition and the Article I, Section 1 right to possess and protect property.
Developing the Test
The Pennsylvania standard to adjudicate claims involving these opposing rights evolved in the courts, culminating in the 1981 Pennsylvania Supreme Court decision in Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981). Tate remains the applicable standard today.
Arrested for trespass for distributing leaflets outside a private college’s building where an FBI director was speaking at a public symposium, Appellants in Tate argued that their rights to petition and assemble guaranteed by the Pennsylvania Constitution protected them from prosecution for trespass. While the college was privately owned, both the campus and the symposium were open to the public. However, the Commonwealth argued that the college’s permit requirement provided appellants with an avenue to assemble on the campus, and that this permit requirement was a reasonable restriction on Appellant’s right to assemble.
Acknowledging the federally-recognized principle that “a state in the exercise of its police powers may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation,” the Court found that the state may restrict property rights in favor of the right to assemble and the right to petition “in certain circumstances.” However, citing Article I, Section 20 of the Pennsylvania Constitution in conjunction with the longstanding right to possess property, the Tate court ultimately determined that the Pennsylvania Constitution provides a greater protection of individual rights than the United States Constitution. Therefore, the Court developed its own test to resolve state constitutional claims when the rights of property, assembly, and petition are implicated.
For guidance, the Court looked to the New Jersey Supreme Court case of State v. Schmid, 423 A.2d 615 (N.J. 1980). The Court specifically emphasized the New Jersey Supreme Court’s observation:
Even when an owner of private property is constitutionally obligated to honor speech and assembly rights of others, private property rights themselves must nonetheless be protected. The owner of such private property, therefore, is entitled to fashion reasonable rules to control the mode, opportunity and site for the individual exercise of expressional rights upon his property. It is at this level of analysis assessing the reasonableness of such restrictions that weight may be given to whether there exist convenient and feasible alternative means to individuals to engage in substantially the same expressional activity.
Tate, 432 A.2d at 1390 (quoting Schmid, 423 A.2d at 630.).
Guided by the New Jersey Supreme Court’s reasoning, the Court developed its current test to determine whether the circumstances exist to restrict a private property owner’s rights in favor of citizens’ rights to assemble and petition. This test requires a court to balance a citizen’s right to possess and protect property against the right of free expression “in light of the compatibility of that expression with the ‘activity of [the] particular place at [the] particular time.” Id. at 1389.
Applying the Test
Applying its newly constructed test, the Court found that the political activists in Tate had a strong interest in exercising their fundamental right to petition and assemble by voicing their political opinions about the FBI Director speaking at the public symposium at the college. Additionally, the court found that the activists’ desire to assemble to voice their opinions about the FBI Director was compatible with the nature of the public symposium where the FBI Director was speaking. Furthermore, the Court found that the college’s standardless permit requirement was not a reasonable restriction and did not dispatch the political activists’ right to assemble. Ultimately, the Court reversed the trespass convictions of the political activists, holding that the activists’ right to pass out leaflets on a private university campus that was open to the public was protected by their Article I, Section 20 rights to assemble and petition.
In 1986, the Court applied the Tate test in W. Pennsylvania Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 515 A.2d 1331 (Pa. 1986). There, the Court to found that a political committee was not entitled to collect signatures for a candidate’s nominating petition in a private shopping mall. In so holding, the Court focused on the fact that the mall owner uniformly and effectively prohibited all political activities and prohibited the use of mall property as a public forum for political discussion. However, the Court was careful to acknowledge that it was “not suggesting that the rights enumerated in the Declaration of Rights exist only against the state.” As such, the Court reaffirmed the holding in Tate that Article I, Section 20 is not limited to state action and reaffirmed the current test for deciding Article I, Section 20 cases when property rights are implicated.
In recent history, the Superior Court applied the Tate test in Com. v. Stanton, No. 2014 WL 10965736 (Pa. Super. Ct. Mar. 7, 2014), involving a trespass action brought against a citizen for protesting in a parking lot of a commercial complex where a Planned Parenthood was located. Applying Tate, the Stanton court rejected the citizen’s claim that his constitutionally-guaranteed rights to assemble and petition protected him from prosecution for trespass for the same reasons as W. Pennsylvania Socialist Workers. Because (1) the commercial lot in question was not a “public forum” and (2) the conclusion that just because Planned Parenthood volunteers and patients parked in the lot, the lot did not amount to a “market place for the exchange of ideas”; the prohibition of the citizen’s protest was a reasonable restriction. Id. at *9.
The above illustration is just one example of the balancing act Pennsylvania courts must perform when analyzing state constitutional law claims. Come back tomorrow for our next installment in our Constitution Week series where Dennis Whitaker will discuss the difference in appeal provisions under Article 3 of the United States Constitution and Article 5 of the Pennsylvania Constitution.
About the Author:
Melissa Chapaska, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in regulatory matters before state agencies and courts. Her practice focuses primarily on administrative agency applications and appeals, and transactional drafting. Prior to joining the firm, Melissa interned with the United States Department of Justice and Pennsylvania Department of Labor & Industry.