GUILDERLAND — Friday was the last day to register to vote in New York State so Patricia Brooks spoke to people at stores in her neighborhood, asking if they were registered.

The stores are private property and court decisions in recent decades have limited free speech in shopping malls. Brooks was asked to leave Market 32 because management felt she was bothering customers. A spokeswoman for Market 32 said that no more attention should be given to Brooks, who was creating “fake crises to generate attention.”

Melanie Trimble, director of the Capital Region chapter of the New York Civil Liberties Union,  said that on private property, Brooks would need permission to speak with people about registering to vote. “And that’s unfortunate, because it’s such an innocuous thing, you wouldn’t think anybody would even complain,” Trimble said. She added, “Probably 10 or 15 years ago, nobody would have.”

Brooks, who lives in an apartment complex behind Market 32 in Hamilton Square, says she was surprised by the reaction she got at the store. She says, in a letter to the Enterprise editor this week, that a manager and another man both came out of the store and told her she had to leave. She added that they both yelled “MAGA” — for Make America Great Again, Donald Trump’s slogan — at her several times, which she called “bizarre,” and they threatened to call police.

Brooks said she is currently applying to the town for a “mass-gathering permit” and plans to ask several friends to join her in standing in front of Market 32 on Oct. 26, from 9 a.m. to 1 p.m., and to hold up signs that say “Vote.” But according to both Trimble and the town planner, this kind of internal sidewalk — between a parking lot and a store — is legally considered private property.

Brooks and Mona Golub, vice president of Public Relations & Consumer Services for Price Chopper Supermarkets & Market 32, agree on one thing: Brooks was asking people questions about whether they were registered.

They disagree about much else: whether she approached any customers inside; whether customers were bothered by it; and whether she was there all morning, “quasi-holding court,” as Golub described it to The Enterprise.

Brooks owns her own company, a media consultancy for not-for-profits; she does a lot of work related to civil rights, the environment, and voting rights, she said.

Golub said that Price Chopper Market 32 stores are private property, and people don’t have the right to solicit or promote any agenda without authorization. “And that goes for the Salvation Army to the League of Women Voters, who set up regularly in our stores with our permission to register voters,” she added.

The League of Women Voters sets up tables at many Price Chopper stores in this area every year, handing out information about voter registration; in that case, Golub said, shoppers have the option of either chatting with or bypassing representatives of the organization.

Golub said several customers and employees (whom she calls “teammates”) complained about Brooks, because her approach made them uncomfortable, disrupting business. So, she said, the manager “asked her nicely to leave.” Golub added, “Regardless of how worthy Ms. Brooks’ agenda or cause may be, we have a responsibility to ensure that our customers and teammates are comfortable in our stores.”

Golub said no one employed by the supermarket said anything political to Brooks, although store management believed “someone else may have, as she was leaving.” In an email on Tuesday, Golub said she was “sorry that Ms. Brooks feels she was treated poorly and that a non-Market 32 employee apparently made an incendiary comment.”

Golub said she has security footage and more than a dozen signed affidavits from “people whom she asked about voter registration.” The affidavits are by employees, she said, adding, “Several of them were uncomfortable about the conversations that she had with them personally.”

Golub said it was difficult to get corroborating affidavits from customers, since the customers would already have left. On Tuesday, she declined an Enterprise request to send the video footage, saying that the supermarket has investigated and considers the matter closed.

Golub said that Brooks spoke to “more than several dozen customers and teammates across hours in our store” in a “very sensitive political climate.” Golub did not suggest that Brooks had ever offered any political opinions. She did say Brooks had asked “more than a few” questions about whether the people she was speaking to were registered to vote, whether they intended to register, and whether they wanted to know how to register.

“Those conversations are fine, outside of a private business or inside a private business that has given authorization,” Golub said.

Golub said the store has footage of Brooks “talking at every single person up and down the produce aisle, the prepared food section, the deli, throughout the store, more than once, on that day.”

Golub said customers “don’t appreciate being stopped, in the midst of their shopping.”  

Brooks said she spoke to “four people at most” inside Market 32, all of them employees with whom she is very familiar from her almost-daily trips to the supermarket. She did not speak to anyone as they were shopping, she said, although she did talk to people as they exited the store.

She says she stood on the sidewalk outside — which she took to be public property — except when she went in a couple of times to buy something to eat or drink.

View shifts of private space

Store management can ask a customer to leave for any reason, said Trimble, other than factors that are protected by the United States Constitution. “For instance, they can’t ask you to leave because of your race or your religion,” Trimble said.

Since the state’s highest court, the Court of Appeals, in 1985 handed down a decision forbidding leafleting at a mall — members of the Shad Alliance were handing out fliers, opposed to nuclear energy, at the Smith Haven Law on Long Island, which had a blanket no-handbilling policy — there has been a bill, in various forms, languishing in the state legislature that would give people the right to petition and the right to free speech in a shopping mall.

Court definitions of what public spaces are considered private property has shifted over the last four decades.

In 1946, the Supreme Court found that the business district of a privately-owned company town was the same as a public street as far as free speech was concerned. The court stated that “the more an owner, for his advantage, opens up his property for use by the general public, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”

In 1968, the Supreme Court applied the same reasoning to a privately-owned shopping plaza. The court then reversed itself in 1976. But the Supreme Court has acknowledged that, in certain circumstances, a state may recognize broader free speech rights as a matter of state law without offending any federally guaranteed rights enjoyed by the property owner.

In New York, the pivotal case was decided in 1985 when the Court of Appeals, in a split decision, found for the Smith Haven Mall over the Shad Alliance.

Judge Vito Titone, writing for the majority, said, “All members of the court agree that the right to free expression is one of the Nation’s most cherished civil liberties. We differ solely on whether article I, section 8 of our State Constitution, considered in light of both history and modern conditions, precludes the owner of a private shopping mall from enforcing a blanket no-handbilling policy and compels the owner to permit use of the mall for the distribution of leaflets opposing nuclear energy.”

In March 2003, weeks before the United States declared war on Iraq, Stephen Downs was arrested at Crossgates Mall in Guilderland for wearing a T-shirt he bought at the mall and had lettered with “Peace on Earth” on one side and “Give Peace a Chance” on the other.

A lawyer, Downs refused to remove his shirt, insisting on his First Amendment rights, and was arrested for trespassing. Local news accounts were picked up nationally and internationally. Protests followed, and the languishing bill that would give people free-speech rights in malls garnered some support before fading away again.

Not all sidewalks are public

Trimble said there is some question about whether parking lots are public or private. “So if you want public speech to go on, you need to stand in whatever is considered public space,” she said.

Speaking in general terms, Trimble said, “Sometimes it’s a gray area, like the town would plow and maintain the sidewalk, but they don’t really own it, so a lot of times it’s up to the discretion of police officers, whether they’re going to clear it, because of First Amendment activity, or not.”

Town planner Kenneth Kovalchik said that sidewalks alongside roadways are town sidewalks and public property, maintained by the town. However, those that are located around private property like a store or mall — like the one that encircles Hamilton Square — are considered private property, he said. The parking lot, Kovalchik said, is also private.

Public space begins, Kovalchik said, on the public sidewalk, near the roadway. He said he believed that, in general, the entire sidewalk, all the way to the edge further from the road, is within the New York State Department of Transportation right-of-way and is public property. Standing on this kind of external, public sidewalk and holding up signs does not require any kind of permit, he said. He added that, according to town code, a mass-gathering permit is required for events for which admission will be charged, such as circuses or fairs.

Brooks told The Enterprise she had been talking to customers all along the internal sidewalk that surrounds the store, and that she had been under the impression that this, because it is a sidewalk, was public. She had not stood at the store entrance, she said, except when the manager came out to tell her to leave and she crossed in front of the door to walk toward her home.

That morning, she says, she had also spoken to people at the Dollar Store next door to Market 32 and at the Starbucks shop on the other side of the parking lot.

“None of the other local businesses seemed to have problems,” Brooks said. She added, “I am aware it is their right to ask a customer to leave for any reason … The question is if it was a good business decision.”

That morning, she had taken a selfie together with a woman at Starbucks, Brooks said, who later posted the photo on Facebook. The woman, who didn’t want her name used in The Enterprise, wrote on Facebook about meeting Brooks that morning, calling her “inspiring” and a “true hero” because “she wants to make sure that everyone remembers and that their voices are heard.”

Brooks, the woman wrote, is “the change that this world needs so desperately right now.”