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By Peter Bergel
Rights guaranteed by both the Oregon and U.S. Constitutions were dealt a blow on March 19 when private property rights were, once again, given precedence over civil liberties in a Portland court.
Background
On March 16, 2007, along with two companions, I set out to visit then-Sen. Gordon Smith to lobby him about funding for the Iraq war. We were denied access to the World Trade Center in Portland, where Smith’s office was located, by security guards employed by Portland General Electric Company, the building’s owner. When we defended our right to visit the senator’s office, we were arrested by Portland police, summoned by PGE security.
Two of us pleaded not guilty and prevailed at trial. The judge issued a 20-page judgment in which he exonerated us on charges of trespassing and deemed the testimony of the security personnel “not reliable” and “not credible.”
Believing my civil rights had been perniciously violated, I took the case to Portland attorney Greg Kafoury, who agreed to bring suit against PGE.
Basis for Summary Judgment
At a hearing on March 19, 2009, Judge Kathleen Daily, formerly the head of the Oregon Trial Lawyers Association, threw the case out of court in response to a motion for summary judgment brought by PGE’s lawyer.
Daily cited two reasons for her decision. She felt that PGE did not “instigate” the arrest. They called the police, she ruled, and the police took it from there. Daily formed this judgment despite evidence on the record that PGE security said, in the hearing of the police, “if you don’t leave, I will have you arrested.” The standard for deciding whether PGE instigated the arrest is whether they encouraged, invited or requested the arrest.
The second reason for Daily’s decision was that protests and exercise of First Amendment rights are subject to reasonable limits on time, place, and manner. Since we did not have an appointment with Smith or his staff, Daily ruled that we could reasonably be prevented from traversing PGE’s private property to reach the senator’s public office. It is well-known, of course, that if public offices of representatives are housed on public property, citizens are free to enter at any time the buildings are open.
Main Issue Not Addressed
The main issue our suit was attempting to address was whether a private entity like PGE has the right to prevent public access to publicly financed offices at their discretion. Daily did not hear this issue.
The First Amendment to the U.S. Constitution provides that citizens have a right to “petition the Government for a redress of grievances.” The Oregon Constitution goes further, protecting the right of citizens to “instruct their representatives” and prohibiting interference in this right. We believe that PGE violated both constitutions by keeping us from visiting Sen. Smith’s office. This suit was intended to secure that right and prevent recurrences of arrests, such as ours, that result from lawful exercise of civil rights.
“We’re on our way to Appeals Court,” Kafoury told me after Daily’s judgment. He believes the case will eventually go to the Oregon Supreme Court. However, that will take years. Meanwhile, the right of Oregonians to visit their representatives can be legally revoked under some circumstances; in this case, at the whim of private security guards.
The Real Significance of this Case
Most representatives house their offices in public buildings, so this issue will not affect most such visits. However, it is significant from another point of view. Increasingly, when civil rights clash with private property rights, property rights triumph.
A few examples: those wanting to collect petition signatures in parking lots outside major shopping destinations or in public malls can be turned away – and often are – by building managers who don’t want their customers “harassed.”
There have been instances when people whose T-shirts or other clothing has borne messages deemed “offensive” or “unwelcome” by private property managers have been asked to leave otherwise public spaces. Claiming itself to be a private institution, the Salem Post Office has refused to allow Tax Day penny polls to be conducted on its property.
As the “public square” of the past has morphed into the privately-owned shopping center of today, the ascendance of private property rights has had the operational effect of pushing free speech to places where it is no longer effective and therefore killing it. There is no value in the right to collect petition signatures if one cannot do it where people congregate. Free speech is no longer free when private managers can censor it unreasonably.
This is just another instance in which our freedoms are being gently, but firmly, pried from us, usually with little protest, by those whose interest in profit, “order,” or “appropriateness” is more important to them than the rights guaranteed us by the founders of our country and state.
Peter Bergel is the executive director of Oregon PeaceWorks.
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