Constitutionally Protected Expressive Activity & the First Amendment: “Who Ya Gonna Call?”

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Constitutionally Protected Expressive Activity & the First Amendment: 

“Who Ya Gonna Call ”

Robert C. Phillips
Deputy District Attorney (Ret.)
RCPhill101@goldenwest.net
858-395-0302
August, 2021

            The situation is not at all uncommon:  An individual business owner, security official for a large shopping mall, or store manager representing a major retail chain store such as (but not limited to) Costco, Wal-Mart or Target, complains to law enforcement that demonstrators, signature collectors, pamphlet distributors, an organization soliciting funds for themselves or for a charity, a panhandler, or some other politically, socially, or religiously motivated individual or group of individuals has set up a table on their property near an entrance to a store.  Such persons, while on the mall or the store’s “private property,” and commonly in violation of some of the mall’s or store’s rules established to control or prohibit such activity, are generally attempting to communicate to store patrons some political, social, religious, or otherwise controversial viewpoint.

            In such a situation, the mall or store representative will typically call for law enforcement’s assistance in evicting the offending individual(s), demanding that the responding police officer tell them to leave or, in the alternative, arrest them for trespassing.  Should the officer balk at doing so, the complainant can be expected to wave around a ream of important looking documents purporting to be case ....

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