Michelle Graye hugs her petition clipboard close, like an old friend. After all, she's carried that board many miles in her quest to place a medical-marijuana initiative on the November 2010 ballot.
As secretary for the Arizona chapter of the National Organization for the Reform of Marijuana Laws (NORML), Graye is a tireless signature hunter. And as a retired librarian, her preferred hunting grounds are outside of Pima County's libraries.
But last August, Graye's activist comfort zone became a bit less comfortable, highlighting serious free-speech questions and an increasingly murky line between public and private places.
It was already hot at 10 a.m., when Graye set up her tiny table under a shady portico at the Dusenberry-River Branch Library. The library is tucked in the corner of a foothills shopping center, and as Graye neared the end of her busy two-hour gig, she was approached by branch manager Dianna Thor.
"I know Dianna, and I thought she'd come out to say hi, because that's what happens when you work in a library," Graye says. "... But she came out, and she was nerve-racked. She said, 'Michelle, you're not supposed to be here. Larsen Baker doesn't allow petition passers.'"
Larsen Baker is the Tucson firm that manages the River Center.
"I didn't believe it," Graye says. "I asked Dianna, 'Why is the library wimping out on this?'"
But that decision wasn't for the library to make, says Larsen Baker co-owner George Larsen.
"In our company, we have a policy that we don't allow (petition-)passers to be on our property. They represent a potential slip and fall, or a hazard of some sort or another. They could offend people. That's well-supported by the industry. The industry says private property owners have the right to put those kinds of restrictions on petition-circulators."
Larsen says he suggested that Graye move her petition table inside the library. "And she said, 'I can't, because the county says that I can't put it in the library.'"
In its online petition-passing guidelines, the Pima County Public Library writes that those "seeking signatures on candidate-nominating petitions or initiative or referendum petitions may do so outside of a library, so long as library activities are not disrupted and access to the library is not obstructed."
But what happens when passing petitions outside of a library is restricted? That question sparked a long debate during the library board's November meeting, according to Pima County Public Library director Nancy Ledeboer.
"We do understand that petition-passing is part of the democratic process, and that it should be encouraged as a quasi-public forum," Ledeboer says. "But we feel that having petitioners inside the library would interfere with the business of the library."
It had also been suggested that Graye move her efforts to a nearby park or the River Road sidewalk—hardly foot-traffic hotspots on a scorching summer day.
Ultimately, the advisory board decided—with legal cover from the Pima County Attorney's Office—that Graye would not get special treatment. "We can't make exceptions at one library just because the landlord won't allow it," says Ledeboer.
Deputy county attorney Karen Friar was party to that November discussion. She says the library is well within its rights to restrict Graye from gathering petitions inside. "In libraries, First Amendment rights aren't unlimited—there's a significant body of law that allows for restrictions to be placed on First Amendment rights because of the purposes of the library."
Still, that body of law is constantly evolving, as the privatization of government functions and changing shopping habits place more formerly public space in private hands. This ultimately muddies the legal waters, according to David Hudson, a scholar with the First Amendment Center at Vanderbilt University.
"The First Amendment only protects our free-expression rights from infringement by government officials," Hudson says. "So the defendants (like Larsen Baker) may argue that they, as the owners of the private shopping mall, are private officials, not public officials, and therefore, there is no state action sufficient to trigger a First Amendment claim.
"Property managers could also argue that, since libraries are on private property, they're not truly public forums, so barring petitioners is completely legal," Hudson says. But supreme courts in some states "have interpreted their state constitutions to provide (free-speech) protection even in privately owned shopping malls in certain situations."
Either way, Hudson calls this public-private tussle "a huge issue," reaching even the Internet. "Even though a lot of Internet service providers are technically private, they've assumed such a primacy in people's lives that (some argue) they should be assumed to be akin to governmental actors," he says. "Or huge shopping malls are the modern equivalent of the old town square. Most courts have not accepted those arguments, but those arguments are out there."
Courts have historically leaned toward private-property rights, says Malachy Kavanagh, spokesman for the International Council of Shopping Centers. The ability to restrict petition-passers "is based on a legal ruling that shopping centers are private property; therefore, they can dictate what transpires on their property."
Although some states such as California allow petition-passing in shopping centers, says Kavanagh, "the shopping center can still dictate time, place and manner. You can't just randomly show up and say, 'I'm going to leaflet; I'm going to picket; I'm going to do this or that.'"
The Arizona Court of Appeals offers at least one ruling that solidly favors private property over free speech. The case dates back to the 1980s, when petitioners were seeking to recall then-Arizona Gov. Evan Mecham. The court held that shopping centers were not the functional equivalent of town squares, but rather just areas "in which a large number of retail businesses are grouped together for convenience and efficiency."
Of course, that doesn't mean the difference between private and public spaces are set in stone—particularly when they involve taxpayer-owned spaces such as libraries.
"Our position is that people should have the right to express themselves on private property, especially when you have a government entity that is leasing space," says Alessandra Soler Meetze, executive director of the American Civil Liberties Union of Arizona.
"We're moving toward privatization in every sector of government," Soler Meetze says. "Our position is that these are public spaces, and they're in the public forum."
Nonetheless, Michelle Graye faces a steep uphill climb: She sued Larsen Baker in small-claims court, where she sought $50 for the signatures she couldn't gather. But she lost her case on Jan. 14—and was required to pay the defendant $13 in court costs.
However, she did persuade George Larsen to sign her petition afterward.
