Judges say free speech not violated

Seven years after Stephen Downs was arrested at Crossgates Mall for wearing a T-shirt declaring “Peace on Earth” and “Give Peace a Chance,” the Appellate Division in Albany determined that the town of Guilderland had probable cause for his arrest, and that his free speech rights had not been violated.

The decision of the five-judge panel was unanimous.

Downs first made his case against both the town and Pyramid, the owner of Crossgates, on an array of charges, but narrowed it on appeal. The next step would be to bring the case before the Court of Appeals, the state’s highest court in the three-tiered system, and Downs said it was something he’d like to pursue.

“I believe we will be taking the case to the Court of Appeals,” said his lawyer, Mark S. Mishler.

“I never had any clue that the incident would have such a far-reaching effect,” Downs, a lawyer, told The Enterprise this week. It was 2003 when he went into the mall and bought a T-shirt he had lettered with his message of peace. He had heard about a group of people getting kicked out of the mall for wearing anti-war shirts directly before the United States went to war with Iraq, which motivated his own experiment.

“It was literally unbelievable to me that someone would be thrown out of the mall because of what they were wearing. I was trying to prove that it wouldn’t happen,” Downs said. He went to the mall on a Monday night, he said, when few people were there, put on his shirt, and walked around.

When Downs refused to remove his shirt, he was arrested for trespassing by a Guilderland police officer. His arrest caused large protests and world-wide media coverage; the charges were dropped.

The Appellate Division decision, written by Judge John A. Lahtinen, details the events this way: Mall security officers asked Downs to remove the shirt, and he refused. Security guard Robert Williams testified that he observed “a commotion” with Downs and other mall customers. Security then asked a Guilderland Police officer, Adam Meyers, who was at the mall on an unrelated matter, for assistance. Meyers contacted his superior officer, and the town attorney, and was advised that Downs could be arrested for trespassing if the mall wanted to press charges. Meyers testified that he “observed a potential disturbance involving a mall customer” and Downs.

The mall eventually dropped the charges filed against Downs, but Downs contends that his right to free speech was violated, and that he was subjected to a false arrest.

The Appellate Division determined that, because malls are considered private property, restriction of speech is not a violation unless the state is significantly involved. Mishler argued that there was a level of entanglement between the town and the mall, because the Guilderland Police have a station in the mall, which is provided by the mall free of charge, and the mall pays the town for law enforcement.

Town Supervisor Kenneth Runion said this week that the mall was only required to pay for law enforcement for five years after the installation of the police station there, as a condition of its special-use permit. He said Pyramid has not paid the town for law enforcement since the mid-1990s.

“There is ample precedent establishing that the involvement of the town police officer at the request of the mall to enforce the rights of the private property owner under these circumstances did not constitute state action,” Judge Lahtinen states.

The court based part of its decision on a case the Court of Appeals had decided in 1985. Members of a group called the SHAD (Sound-Hudson Against Atomic Development) Alliance, opposed to the Indian Point and Shoreham nuclear power plants, handed out leaflets at the Smith Haven Mall on Long Island; they were forced to leave. The SHAD Alliance brought a suit against the mall, contending that its free-speech rights had been violated, but the Court of Appeals found in favor of the mall.

In the SHAD Alliance case, the high court determined that, because the mall was private property, and had a blanket no-handbilling policy, the group’s rights had not been violated; the judge in the case stated that Article I of the state constitution limits only state action, which he said wasn’t present in the SHAD Alliance case.

Mishler said he made the argument that the SHAD Alliance decision was incorrect, but that, even with the SHAD case upheld, Downs’s case is completely different. Downs was not leafleting, he said, and, in the SHAD case, no police officers were involved.

“The SHAD case is a too limited view of First Amendment rights, and I think that needs to change,” Mishler said. He said the number-one goal of bringing the suit was to convince the court that the SHAD Alliance case is incorrect and too limiting, with the secondary goal being to prove that Downs’s case is different and should not be determined using the SHAD decision.

Mishler argued that Downs had been subjected to a false arrest because Meyers did not have probable cause for the charges. When an officer arrests someone on a non-criminal charge, it can only be done if he witnessed the event, said Mishler. Based on what the town and police submitted, according to Mishler, Meyers was relying on information from the mall security guards, who stated that Downs was causing a disturbance.

“Probable cause to justly arrest does not require proof sufficient to warrant a conviction and can be supported by hearsay, if such hearsay is based upon the informant’s knowledge and the information is reliable,” the court decision says. It points to the security guards as reliable informants for Meyers, and states that Meyers also observed a “potential disturbance.”

Supervisor Runion said Meyers was reacting to a signed complaint, and, if he had just made the arrest on his own, it might be a different situation.

Downs said the only interaction he had with mall patrons while wearing the shirt was with a group of teenage boys, one of whom told Downs he liked the shirt, and wanted to know where he could get a shirt lettered.

“If someone saw me talking to the group, I suppose they could have interpreted it as a confrontation, but it was actually a positive thing,” Downs told The Enterprise this week.

“I would say the shirt was confrontational, but you have the right to say confrontational things,” he said.

If anything positive came from the situation, Downs said it was the outpouring of support he got from the community. Six days after his 2003 arrest, over 200 protestors showed up at Crossgates Mall to champion his cause.

“It was fabulous,” said Downs. “Community support is part of what makes Albany so special.”