Author:John E. Nowak

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A person commits trespass when he or she enters or remains on the property of another without the permission of the property owner. Violation of trespass laws may result in civil action by the property owner or criminal prosecution. Constitutional issues arise in civil or criminal trespass actions when a defendant claims that the basis for his or her exclusion from the property violates the Constitution. A defendant may assert that she was excluded from the property because she engaged in an activity protected by the Constitution (such as the FREEDOM OF SPEECH

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protected by the FIRST AMENDMENT) or because she is a member of a constitutionally protected class (such as a racial group) disfavored by the property owner.

If a property owner uses the property to perform a public function or if the property owner has become associated with the government in the operation of a business located on the property, the owner may not exclude persons on a basis that is incompatible with constitutional values. A public function is an activity that traditionally has been within the exclusive province of government, such as the operation of a municipality. When a state allowed a private company to own and operate a company town, which included residential and business districts, the First Amendment protection for freedom of speech prohibited exclusion of a woman who wished to distribute religious literature within the town. Operation of a store or SHOPPING CENTER on privately owned property is not held to be a public function. Thus, the First Amendment is not violated when a shopping center owner relies on trespass laws to exclude persons from the shopping mall who wish to engage in speech, PICKETING, or distribution of leaflets.

The Supreme Court will not allow trespass laws to be used to exclude persons from private property because of their race or political activity if the property owner has been directed or encouraged by the government to use the trespass laws in such a discriminatory manner. The Court has held that statutes requiring or specifically allowing a restaurant owner to provide separate areas for customers of different races encouraged racial segregation so that the owner could not use the trespass laws to exclude persons seeking service on a race neutral, integrated basis. Similarly, the owner of a...

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