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The Honolulu Advertiser
Posted on: Thursday, August 12, 2004

High court upholds trespassing conviction

By Ken Kobayashi
Advertiser Courts Writer

Peaceful protesters can be prosecuted for trespassing at Hawai'i shopping centers if they don't leave when asked, the Hawai'i Supreme Court said in its first ruling on the issue yesterday.

In a 4-to-1 decision, the high court refused to expand state constitutional free-speech protections for Frances Viglielmo, who was convicted of second-degree criminal trespass, a petty misdemeanor.

Viglielmo was given six months probation and fined $100 for refusing to leave Ala Moana Center, where she was protesting the sale of military toys on Dec. 15, 2000. She was handing out pamphlets and holding a sign outside a toy store that read, "Stop selling war hero toys to kids."

Viglielmo was arrested after the shopping center's security officers and police told her to leave.

Her lawyer, R. Steven Geshell, maintained that Viglielmo's constitutional rights of free speech should protect her from the trespassing charge because the shopping center's common areas — such as the sidewalks — should be considered a public place.

Even though it's on private property, the 50-acre shopping center draws more than 2 million people each month, houses more than 200 retail stores and has a post office, a satellite city hall and 8,500 parking stalls, according to the court file.

But in a 32-page opinion, Associate Justice Steven Levinson wrote that Viglielmo's conviction does not violate the U.S. Constitution as interpreted by federal courts. In addition, he wrote, the state high court was not expanding free-speech rights under the Hawai'i Constitution to cover Viglielmo's conduct.

Levinson wrote that the majority of other state courts that have considered the issue also have declined to extend their state constitutional free-speech protections to privately owned shopping centers.

He cited the Minnesota Supreme Court's refusal to extend those protections to protesters at the Mall of America, the nation's largest shopping center.

In a 14-page dissent, Associate Justice Simeon Acoba wrote that he believes the state constitution's free-speech provision protects Viglielmo's rights to hand out leaflets and hold signs at "community shopping centers like Ala Moana," even though they are privately owned.

Chief Justice Ronald Moon and Associate Justices Paula Nakayama and James Duffy joined in Levinson's opinion.

Geshell said he was disappointed by the decision, but said he could not comment further because he had not yet seen it.

Viglielmo and city prosecutors familiar with the case could not be reached for comment.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.