Collecting petition signatures and picketing on public sidewalks are classic examples of freedoms protected by the First Amendment. But Bayshore mall security ordered people who were collecting signatures from voters to recall the Governor and Lt. Governor on the sidewalks in front of the mall to leave. In another example, someone protesting the business practices of one of the mall’s merchants was arrested for picketing on the sidewalk. During the recall petition season, there were discussions around the state about where people had the freedom to collect signatures, including in the Milwaukee suburbs.
After mall management claimed it could control First Amendment activities because it “owned” the sidewalks along Port Washington Road and Silver Spring Drive, the American Civil Liberties Union of Wisconsin Foundation and volunteer attorneys took action to advocate for the rights of petitioners and picketers.
“A sidewalk is a sidewalk,” said Jeffrey Perzan, who was ordered to move by Glendale police while he collected recall petition signatures on the sidewalk along Port Washington Road. “The First Amendment protects my right to persuade my neighbors and the public to take action in the public places where they already congregate.” Another protester, Lincoln Rice, picketed against Trader Joe’s business practices on the sidewalk outside its store and was arrested and issued a trespassing citation.
In December, the ACLU of Wisconsin opposed the actions by mall management and city police because every court to consider similar questions has held that private businesses cannot insulate themselves from criticism by artificially designating public sidewalks as private property. Despite a letter from the ACLU, mall security and Glendale police ordered Mr. Perzan to move from an allegedly “private” sidewalk along Port Washington Road as recently as January 6, 2012.
With the help of attorney Jim Gramling, citations were dismissed and negotiations with Bayshore Town Center and the City of Glendale resulted in an acknowledgement of citizens’ First Amendment rights to picket and petition on public sidewalks.
“This is a victory for the most basic form of free speech,” said Gramling. “Sidewalks and parks are places where people traditionally have exchanged ideas and tried to persuade their neighbors to adopt their views. And unlike other forums for expression, like television or the radio, they can be used without charge, so anyone, rich or poor, can seek an audience there.”
The perimeter sidewalks where First Amendment activity is permitted include: (1) the entire sidewalk on the north side of and parallel to Silver Spring Drive from Port Washington Road on the west to Lydell Avenue on the east; (2) the entire sidewalk on the east side of and parallel to Port Washington Road from Silver Spring Drive on the south to Carrigan Drive on the north; and (3) the sidewalks on the west side of and parallel to Lydell Avenue from Silver Spring Drive on the south to Carrigan Drive on the north.
Although some portions of these sidewalks are owned by private entities and other portions are owned by the City, assembly and other expressive activity, as long as it is peaceful, and does not in any way disrupt access, or impede public health, welfare or safety, is lawful on all of these sidewalks, regardless of their ownership. The mall has not agreed to allow protest on the interior streets and sidewalks of Bayshore Town Center where the public gathers. Anyone attempting to protest in these interior spaces may be subject to arrest and/or citation or prosecution.
In addition to Attorney Gramling, Attorneys Holden Brooks and Michael Halfenger of Foley & Lardner in Milwaukee volunteered their time in this case.
This story was also covered on dane101.com and in the Proof and Heresay blog of the Milwaukee Journal Sentinel with a lively comments section.
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