By: Russell Facente

When the British Crown failed to consider the unique needs of the American Colonies, the Founding Fathers engaged in a bloody revolution and started a new country. King George III—considered a tyrant by the Founders—successfully insulated himself from the voices of the Colonies, primarily by a giant moat known as the Atlantic Ocean and a heavily guarded castle. To avoid this in the newly formed United States, the Founding Fathers designed the Constitution with limited government in mind. It is no coincidence that the very first amendment inked protected “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It was of primary importance that the government could never insulate itself from the country’s voting minority or from the people as a whole.[i]

Today, federal (and state) legislators can successfully insulate themselves from their constituents by using taxpayer money to pay for multiple offices and catering only to big-money donors and selected interests. Legislators can refuse to return phone calls or reply with illusory emails of inaction. And by surrounding their public office with a moat of private property, legislators can remove oppositional constituents using trespass statutes through the landlord’s right to exclude. (Apropos, don’t you think—Landlord?) This trifecta of insulation effectively eliminates the Constitutional right for citizens to assemble and petition their elected government.

What’s more, the use of private property to exclude petitioners (the “private property loophole”) actually punishes them by having them arrested, fined and/or convicted (after a costly trial or entrance into a plea deal). In Arizona, A.R.S. § 13-1502(A)(1) Criminal Trespass in the 3rd Degree—the statute used to arrest petitioners at a sit-in at Senator Kyrsten Sinema’s office—may be punished with up to 30 days in jail.

The private-property loophole has been unchallenged thus far. But the caselaw (as if the plain text, original meaning, and legislative intent of the Constitution weren’t enough) seems favorable for closing that loophole. The Supreme Court has repeatedly stated these particular rights are among “the most precious of the liberties safeguarded by the Bill of Rights,”[ii] and held that State actors “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.”[iii] There is some argument as to whether the purpose of a private office complex is to make money off patrons[iv] or—when renting to a public official—is to provide public access to that official.[v] But if private property or First Amendment rights regarding the power of the government are to collide, it seems private property rights will have to yield.[vi]

A recent peaceful sit-in at Senator Kyrsten Sinema’s office, where 39 people were arrested and removed for trespassing, may provide the necessary standing requirements to challenge the private-property loophole to the First Amendment. I think the Supreme Court would agree to close the loophole, for these rights to peaceably assemble and petition would “be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints.”[vii]

[i] See Federalist Papers No. 51 (1788) (“It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. . . . If a majority be united by a common interest, the rights of the minority will be insecure.”).

[ii] BE&K Constr. Co. v. NLRB, 536 U.S. 516, 122 S. Ct. 2390 (2002) (quoting United Mine Workers of Amer., Dist. 12, v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967)).

[iii] Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U. S. 308, 319-20 (1968).

[iv] Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz. 371, 376 (App. 1988).

[v] See e.g., Bell v. Maryland, 378 U.S. 226, 84 S. Ct. 1814 (1964) (denying right to exclude would-be patrons of a restaurant—deemed a public service—because of race); Marsh v. Alabama, 326 U.S. 501, 506, 66 S. Ct. 276 (1946) (“The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”).

[vi] See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 84-85, 100 S. Ct. 2035 (1980) (“Neither property rights nor contract rights are absolute . . . . Equally fundamental with the private right is that of the public to regulate it in the common interest.”).

[vii] United Mine Workers of Amer., Dist. 12, v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967).

Russell is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. He believes the law should value people over property and be accessible to everyone. His legal interests include criminal legal reform, movement lawyering, and human rights.