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At a time when the Commission on Judicial Conduct is up in arms over the political conduct of a few judges, the agency’s chief attorney in Albany, N.Y., is fighting for his free speech rights. Stephen F. Downs, 61, was arrested at a suburban shopping mall on Monday after refusing to take off a T-shirt that read “Peace on Earth” on one side and “Give Peace a Chance” on the other. Downs and his son purchased T-shirts in Crossgates Mall, had them lettered with the slogans and then wore them while shopping. When they were asked by security officers to remove the shirts or leave, Downs’ 31-year-old son complied, but the senior Downs refused. The guards then summoned the Guilderland town police. The attorney, who was handcuffed and arrested for trespassing, is slated to appear March 17 before Town Justice Kenneth Riddett, a part-time judge who is full-time counsel to Senate Majority Leader Joseph L. Bruno, R-Rensselaer County. Ironically, Downs’ arrest on a violation comes just as the commission is asserting the right to discipline judges who partake in political activities. Last month, U.S. District Judge David N. Hurd in Utica, N.Y., shot down as unconstitutionally vague provisions in the Code of Judicial Conduct that restrain the political speech of judges and judicial candidates. That decision involved Albany Supreme Court Justice Thomas Spargo, a former elections lawyer who took part in political activities when he was a candidate for his current position and when he was a part-time town justice. However, the commission is also pursuing charges against at least two other judges who claim they did nothing worse than exercise a constitutional right to express their views on political issues. Spargo’s case, which was prosecuted out of Downs’ office, has caused the most difficulty for the commission since Hurd essentially nullified various sections of the code that the agency cites in nearly all of its complaints. The question of if and how the commission can restrict the speech of judges will apparently be resolved in a higher court. The state plans to appeal the Spargo ruling to the 2nd U.S. Circuit Court of Appeals, and attorneys on all sides say they would not be surprised if the matter eventually goes before the U.S. Supreme Court. There are no allegations that Downs violated any ethics code — he is not a judge, and therefore not subject to the Code of Judicial Conduct — and there is nothing in the Code of Professional Conduct prohibiting the type of speech engaged in by the attorney. But the case pending before Justice Riddett does not so much address free speech as it does the right of a private property owner to control the use of its premises. Supporters of Downs, who spent two years in India as a member of the Peace Corps in the mid-1960s, claim that a person should have the same free speech rights in the common areas of a mall as they would have in a public square. That argument was advanced, unsuccessfully, at the Court of Appeals in 1985. COURT OF APPEALS RULING In Shad Alliance v. Smith Haven Mall, 66 NY2d 496, a divided court found no free speech right that would entitle citizens to hand out leaflets in a private shopping center. The majority said the right to free expression guaranteed in Article 1 � 8 of the state constitution limits state action, not the actions of the owner of a private shopping center. “Smith Haven Mall is not the functional equivalent of a government and its conduct is not the equivalent of governmental conduct,” then-Associate Judge Vito J. Titone wrote for the court. “To be sure, the shopping mall has taken on many of the attributes and functions of a public forum … but the characterization or the use of property is immaterial to the issue of whether state action has been shown.” In dissent, then-Chief Judge Sol Wachtler urged a more expansive reading of the state constitution, one that takes into account societal changes. “In the past, those who had ideas they wished to communicate had the unquestioned right to disseminate those ideas in the open marketplace,” Wachtler wrote. “Now that the marketplace has a roof over it, and is called a mall, we should not abridge that right.” About 100 demonstrators staged a protest on Downs’ behalf Wednesday at Crossgates Mall.

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