Freedom of Speech for Me but not for Thee
As I mentioned in my last entry, I did some door-to-door campaigning this weekend in a local race for the first time in years. . I had my little map and my list of likely voters. There were twenty or so voters listed on a certain west Little Rock street. When I got to the street, the street sign said “Pvt” and there was a sign indicating it was a condominium complex. There was another sign “No Soliciting.” My memory flashed back to years ago, my first summer job in law school was working on a Arkansas House of Representatives race in Hillcrest. As I was earnestly passing out literature I was stopped by a manager for an apartment complex to testily told me I had to leave immediately or she would call the police. Not wanting to cause my candidate controversy, I left. I mentioned this to the campaign coordinator I was working with yesterday, and he assured me – its not solicitation if you aren't trying to sell anything. So who is right?
A comment on one of my recent posts said anyone who has a problem with Sir Rod Bryan's right to debate "needs to look at the first amendment." Of course, my entire blog was entirely about the first amendment, as is this one. We have all heard the cliché that the first amendment doesn't allow us to yell “Fire” in a crowded theater, it doesn't say that in the first amendment either. You can, however, yell "theater" in a crowded firehouse. According to the U.S. Supreme Court, it also doesn't allow us to hand out leaflets at the local shopping mall. On the other hand, it does allow us to protest on a public college campus ( not just anywhere you want though.".
To keep this blog somewhat succinct, I won't drone on about the history of these issues, even though it is fascinating. Instead I can tell you from my review of this issue: there are no definitive rules as to door-to-door canvassing of apartments and condominiums in Arkansas so do so at your own risk. I sincerely doubt most police would even consider arresting someone for peaceful political activities – but what if you are campaigning against an incumbent sheriff in somewhere like Conway County? You might get run out of town, or at least the local retirement home or trailer park, on a rail.
Free speech is not an unlimited right, and in many circumstances the government enforce a reasonable, content neutral time, place, and manner of speech in a public forum. For instance, a citizen may apply and receive permission from a college campus to protest, gather petition signatures. But, a rest home or apartment complex is private, not public forum, and in many instances free speech may be banned altogether. To further complicate matters almost every state has its own version of the freedom of speech in their constitution. That means that each state has some discretion to regular freedom of speech slightly differently.
The best I can say about this issue is that there is no universal rule to follow when it comes to determining where and how you can politically campaigns door to door. Almost everything I have read indicates that an owner of a multi-unit apartment complex, a condominium home owner's association, or a trailer park owner all have a property right to exclude uninvited political candidates from distributing materials on their property. Conversely, I assume that an owner of even huge apartment complexes may chose to allow one candidate on the premises, but not another. It seems unfortunate that the property owners would prevent their tenants from being educated about a political race or issue – but sometimes the class of constitutional rights creates unfortunate results.
I had hoped to make this a little more lively topic – but as I learned in law school, free speech doesn't necessarily mean interesting important, or relevant speech, just like most political debates.
Sincerely,
The Hoglawyer
hoglawyer@gmail.com
