A reader wants to know if he can legally picket or hold up placards on a private street that is open to, and used by, the public.

He may have a good argument that he should be allowed to picket, unless his placard makes a statement that would be legally questionable no matter where he raised it. For example, speech that advocates illegal actions might be barred for its content, regardless of whether he has a right to use the private street.


Whether the private street is open to the public is a key question. For example, if you want to hold up a placard urging the closing of American borders on a private street that I own and where I am the only user, I can order you off my street if I disagree with your viewpoint. You will not have a good legal argument that you should be allowed to stay, because of the privately-owned status of the street and the fact that it is not open to public use.

But the U.S. Supreme Court has traditionally favored free expression on private streets that are used by the public. In 1946, the court ruled in favor of allowing a nonresident of Chickasaw, AL, a private town, to distribute religious literature on the streets. The town was owned by Gulf Shipbuilding Corp. and corporate executives had refused to allow the nonresident’s handouts.

The court’s decision said that by encouraging people to live on its property, Gulf Shipbuilding had opened the property and streets to general public use. Therefore, the corporation’s right to bar handout distributors yielded to the rights of non-residents to use the streets for lawful purposes.

However, the free speech guarantees of the First Amendment to the Constitution are not unlimited. Generally, individuals do not have the right to make public statements or distribute literature that incites illegal activity or violence. Courts have prohibited speech considered obscene, defamatory or that creates a considerable risk of harm.

What if you want to express your views on private property open to the public, such as a shopping center parking lot? Courts generally say that shopping centers or malls should adopt “reasonable” rules for free speech activity on the property.

In cases where shopping center rules have been tested, courts in some states have upheld rules that required advance permits, allowed shopping center management to approve signs and literature in advance, limited the number of participants or limited demonstrations to a “designated free speech area.”

The Maryland Court of Special Appeals ruled against union advocates who picketed on privately owned land in 2015. The United Food and Commercial Workers demonstrated at a Walmart store in Anne Arundel County in an effort to unionize workers.

Walmart sued the union on grounds of trespass and public and private nuisance. The appeals court upheld a temporary injunction granted by lower courts. It then issued a permanent injunction against the picketing.

The injunction defined Walmart’s private property to include store buildings and sidewalks, parking lots, other facilities and any other areas on property owned or leased by the corporation.

Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at denglelaw@gmail.com.