Michael Cross v. The State of Texas--Appeal from County Court at Law No 1 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MICHAEL CROSS,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00283-CR

Appeal from the

County Court at Law No. 1

of El Paso County, Texas

(TC#20000C06621)

MEMORANDUM OPINION

In April 2000, Michael Cross attempted to collect signatures at an El Paso shopping mall to have Pat Buchanan added to the ballot for the 2000 presidential election. Mall officials asked Cross to leave, and when he refused to do so, they called the police. Cross was subsequently arrested and convicted for criminal trespass and was assessed a $500 fine. Cross appeals, contending that the application of the criminal trespass statute in this case violates his right to free speech under the United States and Texas Constitutions. We conclude that Cross s federal constitutional claim has been foreclosed by decisions of the United States Supreme Court and that Cross has not demonstrated why we should interpret the Texas Constitution more broadly than the Unites States Constitution in this regard. Accordingly, we will affirm the judgment of the trial court.

Factual and Procedural Background

The facts in this case are essentially undisputed. Sunland Park Mall is a 950,000-square-foot enclosed shopping center with movie theaters and over one-hundred stores grouped around a common area and surrounded by a large parking lot. There are only three large malls in El Paso, and Sunland Park is the only one on the west side of town. Some department stores have their only west-side location at Sunland Park.

The Mall and its parking lot are open to the general public during business hours. But the Mall does not allow people to put handbills on vehicles parked in the lot. The Mall allows a number of noncommercial activities on the premises and it does not require those who enter the Mall to shop. For example, people may sit in the food court without purchasing food, walk the common area for exercise, or attend free organ concerts. The Mall also allows various organizations to use the common area. To take advantage of this opportunity, an organization must complete a common-area application and obtain approval from Mall management. The application form states that the Mall retains sole discretion to permit or not permit any person or organization to use the common area. The Mall s marketing director, Sylvia Hernandez, testified that the purpose of the Mall is to make money. Therefore, in considering whether to grant an application, the Mall considers whether the proposed activity will increase traffic flow into the Mall, whether it will enhance the image of the Mall, and whether it will offend the Mall s customers or tenants. Based upon these considerations, the Mall does not grant common-area applications for partisan political activities. For example, the Mall refused an application by the El Paso Jaycees to solicit signatures regarding a bond issue because the Mall did not want to give the appearance of having taken a side on the issue. But the Mall granted an application to set up early voting booths in the common area because that activity was not partisan and because the Mall hoped that some of the voters would stay to shop after voting.

Before the day that he was arrested, Cross attempted to solicit signatures for his petition at the Mall. When he was stopped by the Mall s security guards, he went to the Mall office and was told that he had to complete a common-area application before conducting his activities at the Mall. Cross refused to complete and submit an application. Hernandez and the Mall s manager, Connie Warner, testified that even if Cross had submitted an application, it would have been turned down because of the political nature of his activities.

The following Saturday, Cross positioned himself at one of the Mall s main entrances and approached shoppers as they entered the Mall. Warner testified that some Mall patrons were offended by Cross and reported his activities to the Mall s management; others simply ignored him. Hernandez and a Mall security guard informed Cross that he did not have permission to conduct his activities at the Mall and that he would have to leave. When Cross refused to leave, Hernandez called the police. Upon their arrival, the police again asked Cross to leave the Mall premises, and he again refused. At that point, he was placed under arrest for criminal trespass. //

Cross filed a pretrial petition for writ of habeas corpus, asserting that the criminal trespass statute was being unconstitutionally applied in this case. Ex parte Cross, 69 S.W.3d 810, 813 (Tex. App.--El Paso 2002, no pet.). The trial court denied the petition after conducting an evidentiary hearing. Id. Cross then appealed to this Court. Concluding that Cross s as applied challenge to the statute was not ripe because he had not yet been convicted, we dismissed the appeal. Id. at 814-15.

Back in the trial court, the parties stipulated that the evidence at trial would be the same as the evidence at the habeas hearing and they requested the judge (who had presided at the habeas hearing) to take judicial notice of the evidence at that hearing. Cross again argued that application of the criminal trespass statute was unconstitutional in this case. The court adhered to its previous ruling on that argument and found Cross guilty of the offense.

United States Constitution

In his first issue, Cross asserts that the criminal trespass statute, as applied in this case, violates the First Amendment to the United States Constitution. Specifically, he argues that he was entitled to exercise his right to free speech at Sunland Park Mall because the Mall is the functional equivalent of a town square.

The First Amendment generally forbids content-based restrictions on free speech. See Hudgens v. Nat l Labor Relations Bd., 424 U.S. 507, 520, 96 S. Ct. 1029, 1036, 47 L. Ed. 2d 196 (1976). But it is also axiomatic that the First Amendment only forbids abridgment of speech by the government. Id. at 513, 96 S. Ct. at 1033. The United States Supreme Court recognized a narrow exception to this second axiom in Marsh v. Alabama.

In Marsh, a Jehovah s Witness was convicted of criminal trespass for distributing religious literature on a sidewalk in a town that was wholly owned by a private corporation. 326 U.S. 501, 502-04, 66 S. Ct. 276, 277, 90 L. Ed. 265 (1946). The town had all the characteristics of an ordinary town, including residences, a business block, sewers, and a post office. Id. at 502-03, 66 S. Ct. at 277. The Court noted that distribution of the literature on a public sidewalk would obviously have been protected by the First Amendment. Id. at 504-05, 66 S. Ct. at 277-78. The Court then held that the circumstance that the property rights to the premises where the deprivation of liberty . . . took place, were held by others than the public, is not sufficient to justify the State s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties . . . . Id. at 509-10, 66 S. Ct. at 280. Furthermore, the State s enforcement of that restriction through its criminal trespass statute could not stand. Id., 66 S. Ct. at 280.

The Court extended Marsh in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968). In that case, a state court issued an injunction prohibiting union members from picketing a store at a shopping center. Logan Valley, 391 U.S. at 312-13, 88 S. Ct. at 1605. As in Marsh, the Court noted that the picketing would have been protected by the First Amendment if it had occurred on a public sidewalk. Id. at 315, 88 S. Ct. at 1607. The Court also believed that the shopping center was the functional equivalent of the business district . . . involved in Marsh. Id. at 318, 88 S. Ct. at 1608. The Court concluded that because the shopping center serves as the community business block and is freely accessible and open to the people in the area and those passing through, . . . the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put. Id. at 319-20, 88 S. Ct. at 1609 (quoting Marsh, 326 U.S. at 508, 66 S.Ct. at 279).

Four years later, the Court retreated from Logan Valley in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972), a case we will discuss in some detail because of its factual similarities to this case. Lloyd involved an attempt by anti-war protesters to distribute handbills at a mall that covered approximately fifty acres and had sixty tenants, including several department stores. 407 U.S. at 553, 556, 92 S. Ct. at 2221-22. The mall was generally open to the public and made a considerable effort to attract shoppers and to create community goodwill. Id. at 555, 92 S. Ct. at 2222. To this end, some civic and charitable organizations were permitted, by invitation and advance arrangement, to use mall facilities. Id., 92 S. Ct. at 2222. The mall did not allow organizations to use the mall for political purposes, except that presidential candidates of both parties were allowed to speak in the hope that people who came to hear the candidates would shop before leaving the mall. Id. at 555 & n.3, 92 S. Ct. at 2222 & n.3. The mall also prohibited the distribution of handbills because that activity might annoy customers and was incompatible with the mall s purpose. Id. at 555-56, 92 S. Ct. at 2222. The mall employed security guards, who were commissioned by the city, had police authority within the mall, wore uniforms similar to those worn by city police, and were licensed to carry handguns. Id. at 554, 92 S. Ct. at 2222.

Under these facts, the Court held that the protesters did not have a First Amendment right to distribute their handbills at the mall. Id. at 570, 92 S. Ct. at 2229. The Court distinguished Logan Valley on two grounds. First, the free-speech activities in Logan Valley were targeted at a store in the shopping center, rather than at the public at large. Second, the targeted store in Logan Valley was located within a large private enclave, leaving the picketers with no other reasonable opportunities to convey their message to its intended audience, whereas the Lloyd mall was crossed by public streets and sidewalks. Id. at 563-64, 566-67, 92 S. Ct. at 2226-28. The Court distinguished Marsh on the ground that it involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. Id. at 569, 92 S. Ct. at 2229.

The Court acknowledged that the mall was generally open to the public and that it had been used for various noncommercial activities. But the mall was open to the public for the purpose of doing business and the noncommercial activities were allowed for the purpose of bringing in potential shoppers. Id. at 564-65, 92 S. Ct. at 2227. The Court also emphasized:

[T]he First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. . . . .

Although . . . the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.

Id. at 567-68, 92 S. Ct. at 2228.

Although the Lloyd Court attempted to distinguish, rather than overrule, Logan Valley, the Court later made plain that Logan Valley is no longer good law. In Hudgens, the Court stated that the reasoning . . . in Lloyd cannot be squared with the reasoning . . . in Logan Valley and that the rationale of Logan Valley did not survive the Court s decision in the Lloyd case. 424 U.S. at 518, 96 S. Ct. at 1035-36. Hudgens involved an attempt by striking union members to picket in an enclosed mall. Id. at 509, 96 S. Ct. at 1031. The Court held that since the anti-war protesters in Lloyd did not have a First Amendment right to distribute their handbills in a mall, the picketers likewise did not have a First Amendment right to advertise their strike in the mall. Id. at 520-21, 96 S. Ct. at 1037.

From reviewing these decisions, it is apparent that the First Amendment guarantee of free speech does not apply in a privately owned shopping mall. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 2040, 64 L. Ed. 2d 741 (1980) (acknowledging that Logan Valley has been overruled); Gibbons v. State, 775 S.W.2d 790, 793 (Tex. App.--Dallas 1989), pet. ref d, 815 S.W.2d 739 (Tex. Crim. App. 1991) (stating that the federal constitutional guarantee of free speech is not applicable to a privately owned shopping center); see also United States v. Kokinda, 497 U.S. 720, 725, 110 S. Ct. 3115, 3119, 111 L. Ed. 2d 571 (1990) (noting that a private business enjoys absolute freedom from First Amendment constraints).

Given the Supreme Court s pronouncements in Lloyd and Hudgens, and Lloyd s factual similarities to this case, it would appear that Cross had no First Amendment right to solicit signatures at Sunland Park Mall. // Cross argues, however, that Lloyd is distinguishable from this case because it did not involve a criminal prosecution for trespass.

Cross does not explain how this distinction makes a difference. Judicial enforcement of neutral trespass laws generally does not amount to state action. CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1026 (S.D. Ohio 1997) (citing Rotunda & Nowak, Treatise on Constitutional Law 16.3, at 546 (West 1992)); People v. DiGuida, 604 N.E.2d 336, 345-46 (Ill. 1992); City of Sunnyside v. Lopez, 751 P.2d 313, 319 (Wash. Ct. App. 1988). Two of our sister appellate courts have applied Lloyd to criminal-trespass prosecutions. See Zarsky v. State, 827 S.W.2d 408, 410-11 (Tex. App.--Corpus Christi 1992, pet. ref d); Gibbons, 775 S.W.2d at 791, 793. Moreover, the Court stated in Lloyd that it had never held that a trespasser . . . may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only. 407 U.S. at 568, 92 S. Ct. at 2228.

Cross s first issue is overruled.

Texas Constitution

In his second and third issues, Cross asserts that the criminal trespass statute, as applied in this case, violates the Texas Constitution s guarantees of free speech and assembly. See Tex. Const. art. I, 8, 27. //

After the United States Supreme Court s decisions in Lloyd and Hudgens, the California Supreme Court held that the solicitation of petition signatures at a shopping center is an activity protected by the California Constitution. Robins v. PruneYard Shopping Ctr., 592 P.2d 341, 342 (Cal. 1979), aff d, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980). The United States Supreme Court affirmed the California Supreme Court s decision, stating, Lloyd . . . does not . . . limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. PruneYard, 447 U.S. at 81, 100 S. Ct. at 2040.

Following California s lead, a few states have concluded that the free-speech provisions in their own constitutions protect speech at shopping centers. See, e.g., Bock v. Westminster Mall Co., 819 P.2d 55, 56 (Colo. 1991); New Jersey Coalition Against War v. J.M.B. Realty Corp., 650 A.2d 757, 760 (N.J. 1994). But most courts that have considered the question have declined the Supreme Court s invitation to interpret their state constitutions more broadly in this regard. See, e.g., Fiesta Mall Venture v. Mecham Recall Comm., 767 P.2d 719, 724 (Ariz. Ct. App. 1989); Cologne v. Westfarms Assocs., 469 A.2d 1201, 1202 (Conn. 1984); Cahill v. Cobb Place Assocs. 519 S.E.2d 449, 450-451 (Ga. 1999); Estes v. Kapiolani Women s & Children s Med. Ctr., 787 P.2d 216, 221 (Haw. 1990); DiGuida, 604 N.E.2d at 347; State v. Lacey, 465 N.W.2d 537, 540 (Iowa 1991); Woodland v. Michigan Citizens Lobby, 378 N.W.2d 337, 338-39 (Mich. 1985); State v. Wicklund, 589 N.W.2d 793, 803 (Minn. 1999); State v. Felmet, 273 S.E.2d 708, 712 (N.C. 1981); S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243, 250 (Nev. 2001) (plurality opinion); SHAD Alliance v. Smith Haven Mall, 488 N.E.2d 1211, 1214 (N.Y. 1985); Eastwood Mall, Inc. v. Slanco, 626 N.E.2d 59, 61-62 (Ohio 1994); Charleston Joint Venture v. McPherson, 417 S.E.2d 544, 548 n.7 (S.C. 1992); Southcenter Joint Venture v. Nat l Democratic Policy Comm., 780 P.2d 1282, 1292 (Wash. 1989); Jacobs v. Major, 407 N.W.2d 832, 847 (Wis. 1987).

There is no reported case addressing whether the free-speech provision of the Texas Constitution protects speech at a shopping mall. But see Republican Party of Texas v. Dietz, 940 S.W.2d 86, 90 n.5 (Tex. 1997) (acknowledging the split in authority on this issue); but cf. Zarsky, 827 S.W.2d at 411-12 (holding that the Texas free-speech provision did not protect protesting outside an abortion clinic at an office complex); Gibbons, 775 S.W.2d at 791, 793-94 (holding that the Texas free-speech provision did not protect protesting in a street owned by a church); Right to Life Advocates, Inc. v. Aaron Women s Clinic, 737 S.W.2d 564, 567-69 (Tex. App.--Houston [14th Dist.] 1987, writ denied) (plurality opinion) (applying a balancing test to determine whether right to free speech applies on private property). Nevertheless, we are not without guidance in resolving this issue.

The Texas Court of Criminal Appeals has made clear that although the Texas Constitution may be interpreted differently than the United States Constitution, courts are not free to impose their own notions of fairness upon Texas citizens as a matter of state constitutional law without firm support in state history or policy. Cobb v. State, 85 S.W.3d 258, 267-68 (Tex. Crim. App. 2002), cert. denied, 537 U.S. 1195, 123 S. Ct. 1256, 154 L. Ed. 2d 1032 (2003). In construing a provision of the Texas Constitution, we may consider the text of the provision, the provision s history, the framers intent, public policy, and the construction of similar provisions by federal and state courts. See State v. Ibarra, 953 S.W.2d 242, 244 (Tex. Crim. App. 1997). The party arguing that a provision of the Texas Constitution should be interpreted more broadly than its federal counterpart bears the burden of showing the inappropriateness of the federal interpretation. See Cobb, 85 S.W.3d at 267.

Similarly, the Texas Supreme Court has stated:

It is possible that [the Texas free-speech provision] may be more protective of speech in some instances than the First Amendment, but if it is, it must be because of the text, history, and purpose of the provision, not just simply because. Starting from the premise that the state constitutional provision must be more protective than its federal counterpart illegitimizes any effort to determine state constitutional standards. To define the protections of Article I, Section 8 simply as one notch above First Amendment protections is to deny state constitutional guarantees any principled moorings whatever. We reject this approach.

Operation Rescue-Nat l v. Planned Parenthood, 975 S.W.2d 546, 559 (Tex. 1998). //

The Texas Constitution provides:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

Tex. Const. art. I, 8. Cross argues that the language of article I, section 8 is broader than the First Amendment. He also points out that the language of this provision is similar to the free-speech provision in the California Constitution, which the California Supreme Court has construed to protect the type of activity at issue in this case. See Robins, 592 P.2d at 342. Additionally, Cross argues that public policy supports the result he seeks.

The Texas Supreme Court has indicated that in some ways article I, section 8 provides a broader guarantee of free speech than the First Amendment. See, e.g., Davenport v. Garcia, 834 S.W.2d 4, 7-9 (Tex. 1992); O Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex. 1988). But see Operation Rescue, 975 S.W.2d at 559 (noting that article I, section 8 may be more protective of speech than the First Amendment in some instances, but finding nothing in its text, history, or purposes to suggest that injunctions restricting speech should be judged by a different standard under the Texas Constitution than under the First Amendment). This determination is based on section 8 s first clause, which is phrased as an affirmative grant of the right to speak rather than as a restriction on governmental interference with speech. Davenport, 834 S.W.2d at 7-8; O Quinn, 763 S.W.2d at 402. But see Charles W. Rocky Rhodes, A Proposal for Interpreting Corresponding United States and Texas Constitutional Guarantees in the New Millenium, 51 Baylor L. Rev. 269, 284-86 (1999) (questioning whether the language of the entire section demonstrates an intent to provide a broader guarantee).

Although Cross relies on the first sentence of section 8, he does not articulate how or why the language and history of that sentence demonstrate an intent to protect speech on private property. It has been suggested that the language of the first sentence of section 8 is concerned with government regulation of speech. See Ex parte Tucci, 859 S.W.2d 1, 19 (Tex. 1993) (Phillips, C.J., concurring) ( The language derives from the eighteenth century right at English common law to publish books and pamphlets without prior government approval. ); see also SHAD Alliance, 488 N.E.2d at 1214 n.4 (suggesting that similar language in the New York Constitution was aimed at curbing legislation concerning defamation).

Moreover, the Texas Supreme Court has held that state action is required before a person may maintain a claim for violation of article I, section 8. Dietz, 940 S.W.2d at 91. Generally, state action is only present for otherwise private conduct when the conduct can be fairly attributed to the government. Id. There is no evidence to show that the operations of Sunland Park Mall could be fairly attributed to the government. But see Golden Gateway Ctr. v. Golden Gateway Tenants Ass n, 29 P.3d 797, 810 (Cal. 2001) (holding that the actions of a private property owner constitute state action if the property is freely and openly accessible to the public). And, as we have already noted, judicial enforcement of neutral trespass laws generally does not amount to state action. CompuServe, 962 F. Supp. at 1026; DiGuida, 604 N.E.2d at 345-46; Lopez, 751 P.2d at 319.

The California Supreme Court s decision in Robins v. PruneYard does not convince us that article I, section 8 protects speech at a shopping mall. Although the California free-speech provision is similar to that of Texas, the California Supreme Court did not rest its decision on an examination of the text or history of the provision. See Robins, 592 P.2d at 346-47; see also SHAD Alliance, 488 N.E.2d at 1214 n.5 (noting that the Robins Court summarily stated its conclusion without analyzing the constitutional provision at issue); Jacobs, 407 N.W.2d at 841 (same). Therefore, Robins does not assist us in interpreting article I, section 8. Furthermore, as the California Supreme Court has acknowledged, most states with similar constitutional provisions have declined to follow Robins. Golden Gateway, 29 P.3d at 801-02.

Finally, Cross relies on demographic and sociological changes. He points out that when Lloyd was written--over thirty years ago--the Court considered large shopping malls to be a relatively new concept in shopping center design. See Lloyd, 407 U.S. at 553, 92 S. Ct. at 2221. Now, according to Cross, it is widely accepted that the downtown areas of many large urban cities are functionally dead and the suburban or outlying shopping mall fulfills many of the purposes and is used by citizens for pursuits which formerly would have been carried on in the town square or downtown.

The record contains no evidence to support Cross s assertion that the downtowns of the United States or Texas in general, or of El Paso in particular, are functionally dead. Nor is there any evidence to suggest an absence of public spaces where Cross could have solicited signatures. In dismissing Cross s habeas appeal, we stated:

[T]he gravamen of Cross s . . . argument [is] that the Mall has become the functional equivalent of the town square such that his First Amendment right to free political speech is protected on otherwise private property. In both his briefing and at oral argument, Cross attempted to support this conclusion by arguing that sociological changes to the nature of public space in American society have occurred. However there was no testimonial or documentary evidence to substantiate this contention. Whether such evidence will be adduced during the trial on the merits is of course up to the parties but its present absence further reinforces our conclusion that this case is not ripe for adjudication.

Cross, 69 S.W.3d at 815. Despite these statements, Cross elected to rely on the habeas record at the trial on the merits.

Cross has not demonstrated that his broad interpretation of article I, section 8 is supported by its text, history, or purpose. Accordingly, based on the facts and arguments presented here, we cannot conclude that the criminal trespass statute violates article I, section 8 as applied in this case.

Cross s second and third issues are overruled.

Conclusion

For the reasons stated herein, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

July 8, 2004

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

Chew, J., dissenting

(Do Not Publish)

DISSENTING OPINION

I disagree with several conclusions reached in the majority s opinion, therefore I respectfully dissent.

Michael Cross was arrested at the Sunland Park Mall in El Paso while attempting to collect signatures in support of a candidate for the 2000 presidential election. Mr. Cross was convicted of criminal trespass and in the trial court he challenged the constitutionality of the trespass statute as applied to him. On appeal, Mr. Cross contends that the application of the criminal trespass statute in this case violates his right to free speech under the federal and Texas constitutions.

While it is evident that the Supreme Court s decision in Lloyd Corp. v. Tanner effectively forecloses any federal guarantee of free speech in a privately-owned shopping mall, the Texas Constitution s affirmative grant of free speech should be interpreted to afford its citizens broader protections than its federal counterpart under these circumstances. This state s guarantee of free speech provides in pertinent part:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. . . . Tex.Const. art. 1, 8.

In Davenport v. Garcia, the Texas Supreme Court recognized that over the course of our constitutional history, Texas has specifically guaranteed an affirmative right to speak and included its expansive freedom of expression clause in its 1836, 1861, 1866, 1869 and 1876 constitutions. Davenport v. Garcia, 834 S.W.2d 4, 7-9 (Tex. 1992). The Davenport Court also acknowledged that Texas free speech provision is broader than the First Amendment in some aspects. Id. at 8; see O Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex. 1988) (Texas Constitution s affirmative grant of free speech is more broadly worded than the First Amendment). See also PruneYard Shopping Center v. Robins, 447 U.S. 74, 80-81, 100 S. Ct. 2035, 2040, 64 L. Ed. 2d 741 (1980) (state s constitution may provide more expansive individual liberties than those conferred by the federal constitution). Even though there is nothing in our constitutional text that explicitly limits the free speech protection to violations by state actors, the Texas Supreme Court has held state action is required to trigger protection of our guaranteed expressional rights. See The Republican Party of Texas v. Dietz, 940 S.W.2d 86, 95 (Tex. 1997) (majority s reliance on federal state action doctrine in interpreting the Texas Constitution is misplaced) (Spector, J., concurring).

While our free speech provision has been interpreted in such a way as not to reach any private action, the quasi-public character of large shopping malls in modern America raises a serious concern that expressional rights are being denied in locales that private owners have intentionally transformed into the functional equivalent or replacement of traditional public squares or gathering places. See New Jersey Coalition Against War in the Middle East v. J.M.B. Realty, 650 A.2d 757, 780 (N.J. 1994) (mall owners who have so transformed the life of society for their profit should not be permitted to claim a theoretically-important right of silence from the multitudes they have invited). Sunland Park is a 950,000 square-foot facility, containing over one hundred stores. Sunland Park permits a number of noncommercial activities on its premises and implicitly invites the public to enter and use its space--without requiring them to shop. However, it refuses to permit partisan political activities. After appropriating the characteristics and purposes of a traditional public forum by inviting the general public to make use of its space for noncommercial activities, owners of large shopping malls like Sunland Park should not be permitted to later deny the full consequences of their open invitation. Free expression of political ideas and political discourse is a central component to the traditional public forum and should remain so, despite its change of location to the mall.

For these reasons, I respectfully dissent.

DAVID WELLINGTON CHEW, Justice

July 8, 2004