returned to the school building for no apparent purpose,
following actual notice by the principal to leave the
premises; the affirmative defense was unavailable to
defendant since his claim of license was unreasonable.
State v. Conk, 180 N.J. Super. 140, 145-46 (App. Div.
1981).
The criminal trespass statute should not be used to
prosecute persons who occupy premises pursuant to a
claim of right, i.e., a delinquent taxpayer or a month-to-
month tenant. The purpose of the statute is to protect
the actual possession of real estate from unlawful and
forcible invasion. State v. Pierce, 175 N.J. Super. 149,
153-154 (Law Div. 1980).
Where defendants’ municipal court convictions for
defiant trespass were reversed in a trial de novo on the basis
that defendants were not guilty of violating the statute
because they were exercising their constitutional rights to
engage in expressional activities on private property open
to public use, see State v. Schmid, 84 N.J. 535 (1980),
appeal dismissed sub nom., Princeton Univ. v. Schmid, 455
U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1981), the
State is precluded from appeal of defendants’ acquittal on
principles of double jeopardy. State v. Gerstmann, 198
N.J. Super. 174, 181 (App. Div. 1985).
In Schmid, supra, the Supreme Court of New Jersey
balanced the constitutionally guaranteed right of
expression against the rights associated with the private
ownership of property. The court noted that “private
property does not ‘lose’ its private character merely
because the public is generally invited to use it for
designated purposes.” The court therefore adopted a
“sliding scale,” finding that the “more private property is
devoted to public use, the more it must accommodate the
rights which inhere in individual members of the general
public who use that property.” To determine the
character of the property, the Court established criteria
which include: (1) the nature, purposes, and
primary use of such private property, generally, its
“normal” use, (2) the extent and nature of the public’s
invitation to use that property, and (3) the purpose of the
expressional activity undertaken upon such property in
relation to both the private and public use of the
property.
If, however, the general public is not invited to use
the property, or it is not devoted to any public use, then
the private owner is protected against “unwanted
expressional activity.” See Bellemead Dev. Corp. v.
Schneider, 196 N.J. Super. 571 (App. Div. 1984), aff’g
193 N.J. Super. 85 (Ch. Div. 1983), certif. den., 101 N.J.
210 (1985) (where court enjoined the distribution of
leaflets to office workers by a union organizer at building
entrances at the Meadowlands Corporate Center -- a
development office building, warehouse, a motel, an
automobile dealer and an athletic club); State v. Brown,
212 N.J. Super. 61 (App. Div. 1986), certif. den., 107
N.J. 53 (1987) (private office complex not devoted to
public use; tenants, including an abortion clinic, and
their invitees, were there by special invitation); State v.
Guice, 262 N.J. Super. 607 (Law Div. 1993)(affirming
municipal convictions for defiant trespass of defendants
who sought to distribute political literature and speak
with students at Stevens Institute of Technology and
factually rejecting mistake of law and ignorance of law
defenses); compare New Jersey Coal’n Against War in the
Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994),
cert. den., 516 U.S. 812, 116 S.Ct. 62, 133 L.Ed.2d 25
(1995)(holding that regional shopping centers must
permit right of expression on societal issues subject to
reasonable restrictions).In Airport Comm’rs of L.A. v. Jews for Jesus, 482 U.S.
569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987), the
United States Supreme Court rejected as constitutionally
overbroad a resolution banning all First Amendment
activities at an airport. In International Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2701,
120 L.Ed.2d 541 (1992), the Court held that an airport
must provide reasonable regulations of free expression
that relate to its legitimate interest in providing efficient
airport services. A post office must also provide
reasonable regulations. United States v. Kokinda, 497
U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Paff
v. Kaltenbach, 204 F.3d 425 (3d Cir. 2000).In United States v. Albertini, 472 U.S. 675, 105 S.Ct.
2897, 86 L.Ed.2d 536 (1985), the Court found no First
Amendment violation in a case where defendants were
charged with illegal reentry onto a military base after
receiving a letter from the base commander barring
reentry. The Court recognized, however, that where a
portion of a military base constitutes a public forum
because the military has abandoned the right to exclude
civilian traffic, thereby relinquishing any claim of special
interest in regulating expression, a person may not be
excluded from that area and barred from exercising
protected First Amendment activity.In State v. Slobin, 294 N.J. Super. 154 (App. Div.
1996), the Appellate Division held that the common-law
right of property owners, in this case a casino, to exclude
disruptive patrons who threaten the security of the
premises and its occupants, or is disorderly or