Speech Not Protected on Private Property

ALBANY, N.Y. (CN) - Anti-war protesters did not have the right to stay in a mall after security asked them to leave because the mall is private property, a New York appeals court ruled.

Before the Iraq invasion in 2003, Scott Downs and his adult son had customized T-shirts made at the Crossgates Mall in Guilderland, N.Y.

Downs' shirt read "Peace on Earth" on the front and "Give Peace a Chance" on the back. His son's shirt read "No War With Iraq," with "Let the Inspections Work" on the other side.

The Downs men left their jackets in the store, put the T-shirts on, and took a walk through the mall.

Security guards were soon alerted to a confrontation between the shirt-wearing duo and other mall customers. A policeman said the men could be arrested if they didn't remove the shirts or leave the mall.

Downs' son took his shirt off, but Downs refused, so he was arrested for trespass. The charge was later dropped.

Downs sued the city, the mall owners and the police officer for false arrest and First Amendment violations. He asked the lower court for financial damages and the declaration that the mall is a public forum for free speech.

The lower court dismissed Downs' case, and Justice John Lahtinen of the Third New York Appellate Division agreed.

"Restrictions regarding expression on private property, including malls, do not typically implicate the constitutional right to free speech," Lahtinen wrote.

He also ruled that Police Officer Adam Myers did not falsely arrest Downs for trespass because security guards informed Myers of the disturbance, which provided him with probable cause for the arrest.

"Myers also observed a potential disturbance involving plaintiff and learned directly from plaintiff that, despite being asked by mall personnel to leave, he absolutely refused to leave the premises," Lahtinen wrote.

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