Freedom of Speech • Public Demonstration • Private Nuisance

Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Practical Knowledge, PICS Case No. 13-3342 (C.P. Philadelphia Nov. 7, 2013) Ceisler, J. (18 pages).

Where a group engages in constitutionally protected speech in a public area in compliance with all applicable laws and ordinances, a shopping center, proceeding under the guise of a tort claim, should be denied a permanent injunction.

Appellee Israelite School of Universal Practical Knowledge (ISUPK) began conducting demonstrations in a setback area that was part of the main entrance of The Shops at Liberty Place (The Shops), a shopping mall owned and operated by appellant Liberty Place Retail Associates, L.P. The demonstrations were characterized as hateful and incendiary in nature, offending patrons and tenants of The Shops.

Liberty Place filed a complaint, ultimately limited to claims of trespass and private nuisance, against ISUPK, seeking damages as well as a preliminary injunction leading to permanent injunction. The court granted a preliminary injunction, ordering ISUPK to cease demonstrations on property owned by Liberty Place, as well as ordering ISUPK to comply with all city ordinances and ensure that their demonstrations did not create a danger to the public.

The trial court noted that Liberty Place had failed to present sufficient evidence to prove its claims of trespass or private nuisance. It noted that, absent manifest intent, an individual is not responsible for a third party’s trespass. The trial court found that audience to ISUPK’s demonstrations who were on Liberty Place’s property were not encouraged or directed by ISUPK to be there; instead, ISUPK chose their location across from the entrance on public property to reach the broadest audience possible, regardless of where they listened from. The trial court also found that the demonstrations did not create a level of noise or disruption necessary to constitute a nuisance, or for Liberty Place to be harmed by the demonstrations. Finally, Liberty Place could not show that the demonstrations caused it to lose money, aside from its voluntary decision to increase security.

However, the trial court argued that the crux of the case hinged on ISUPK’s First Amendment rights. The trial court noted that free speech, particularly on matters of public concern, occurring in public spaces, was a fundamental right; the power of the government to restrict said speech was limited to “weighty and substantial reasons”.

But the trial court also noted that protected speech is not permissible at all time and in all places. Where a significant government interest exists, the government may restrict the time and place individuals may express themselves as long as there are alternative channels for communication. An injunction restricting speech may not be used to restrict the content of speech. Furthermore, a permanent injunction is only proper to prevent a legal wrong for which there is no adequate redress at law.

The trial court argued that Liberty Shops failed to provide sufficient evidence to justify the granting of a permanent injunction; instead, the court believed that Liberty Shops’ displeasure stemmed from the content of ISUPK’s speech; however, the trial court asserted that it was not its place to shield Liberty Place or its tenants or patrons from speech that may be upsetting or insulting, to or protect Liberty Place’s economic interests from ISUPK’s legal activities.