The Landmark Case That Extended Speech Rights on Private Property

The New Jersey Supreme Court issued a major ruling on free speech 45 years ago this month — one that solidified the state’s constitutional protections for expressional rights as stronger than those guaranteed by the First Amendment.

In the case, State v. Schmid, the Garden State’s highest court held that under New Jersey’s 1947 constitution, an individual’s expressional rights on private property open for public use — here, Princeton University — could not be unreasonably restricted. The U.S. Supreme Court, by comparison, took a separate path, gradually narrowing and finally overturning its initial ruling that an individual may possess a First Amendment right to protest on such premises in a trilogy of cases involving privately owned shopping centers decided between 1968 and 1976. Schmid’s bold divergence from “lockstepping” with federal standards has, in consequence, impacted speech rights far beyond New Jersey’s borders, with multiple states and even a foreign country drawing from its precedent.

An Arrest at Princeton

The saga began on April 5, 1978, when 26-year-old Chris Schmid, a member of the fringe U.S. Labor Party, was arrested by a campus police officer for trespassing as a “disorderly person” at Princeton University. He had been distributing and selling political literature related to an upcoming Newark mayoral race outside an undergraduate dormitory and dining hall. At the same time, Schmid — who was not a student at the university — was running for election to the Trenton City Council on the Labor Party ticket.

Princeton’s then-existing regulations prohibited non-affiliates of the university community from engaging in on-campus solicitation for political, religious, or charitable purposes without both the sponsorship of a campus-based organization and the permission of the dean of student affairs. By contrast, the university allowed its students, faculty, and staff to do so without administrative approval. Schmid had not been invited, nor had he received authorization for his April 5 activities. But he was indeed conscious of Princeton’s policy; in an earlier incident, university officials warned Schmid that he could be subject to discipline for soliciting without permission.

Post-arrest, Schmid was brought before Judge Philip Carchman of the Princeton Borough Municipal Court, who convicted him in October 1978 of criminal trespass under the relevant state statute and fined him $15 plus $10 in legal fees. Carchman, however, still observed some measured skepticism of the notion that Princeton, “a private university, dedicated to free expression, [met] its commitment by a semblance of restriction on the orderly expression of ideas” — namely, by prosecuting Schmid.

At this stage in his case, Schmid did not mount a serious state constitutional challenge to the university’s policy. Such an argument was likely an “afterthought,” Carchman told State Court Report in a recent interview. Yet there were already hints that Schmid’s case was unusual for municipal court, he said. For one, Schmid had advanced challenges under the First Amendment, and Carchman ordered briefing to address what he described in the interview as “constitutional issues of significant magnitude.” There were also a number of spectators at the proceedings, Carchman recalled, suggesting uncommon interest from the public. But Schmid, for his part, seemed distracted and unaware of the “majesty of the moment,” Carchman said.

The “State Action” Doctrine and Judicial Federalism

When the case got to the New Jersey Supreme Court the next year, following a string of (unsuccessful) appeals, Schmid switched tack — by raising claims under both the federal and state constitutions.

First, he argued that Princeton’s policy curtailed his First Amendment rights because of its disparate treatment of non-students and students. Schmid analogized Princeton to a privately owned “company town,” which functioned like a local government and therefore was a quasi-public entity qualifying as a “state actor” and limited by the First Amendment. In 1946’s Marsh v. Alabama, the U.S. Supreme Court had articulated that a company town performing all the services of a municipality could not bar non-residents from disseminating religious materials on its sidewalks. That principle, Schmid declared, should similarly bind Princeton.

Second, Schmid argued that Princeton violated his rights under New Jersey’s constitutional provisions guaranteeing protections for free speech, assembly, and petition, which he contended could be construed more liberally than their federal version. This pivot to the state constitution reflected a growing recognition that state bills of rights could be independently interpreted by state high courts to “surpass” the minimum “floor” mandated by the U.S. Constitution, and thus confer a greater degree of protections than their federal analog might. (In June 1980, just a few months before the New Jersey Supreme Court’s decision in Schmid, the U.S. Supreme Court would confirm in Pruneyard Shopping Center v. Robins that a state charter — California’s, in this instance — could more broadly protect individuals’ liberties relative to its national counterpart; as with Schmid, Pruneyard concerned a state-level right to free speech on private property.)

The university enlisted Nicholas Katzenbach, a former U.S. attorney general and a member of its board of trustees, to advocate on its behalf at the New Jersey Supreme Court. Princeton asserted in its intervenor brief that “essential” “academic freedom” and an “ancient tradition of self-governance” required that private colleges and universities be empowered to determine whom to exclude from their property. From Princeton’s perspective, to let the state judiciary shape the contours of campus access for non-students would be improper overreach.

During a three-hour oral argument in February 1980, Princeton concentrated its arguments on the autonomy afforded to private entities under the federal Constitution. Katzenbach, accordingly, mentioned the state constitutional claims only in passing in his prepared remarks: “Appellant argues that the New Jersey Constitution gives him broader rights than the federal Constitution and that it should be read as a limitation on private as well as governmental authority,” he said. “I do not read it as giving broader rights than the First Amendment — but perhaps it does.”

A Watershed Ruling

The New Jersey Supreme Court unanimously reversed Schmid’s conviction that November. The 7–0 opinion was rooted in state constitutional protections. “It would be difficult to conclude under the circumstances disclosed by the record that Princeton University” — as a private entity — “is directly subject to First Amendment strictures,” the court said. However, it went on, state law “can independently furnish a basis for protecting individual rights of speech and assembly,” and the state constitution provided “compelling alternative grounds for relief.”

To explain how the New Jersey Constitution protected expressional rights on private property open to public use to a greater extent than the U.S. Constitution might, the court focused on the textual differences between the First Amendment and the state equivalents, located in Article I, paragraphs 6 and 18 of the New Jersey charter.

Whereas the First Amendment’s language was negatively phrased as a restriction upon governmental interference in expressional channels — “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble” — the New Jersey Constitution’s language was positively phrased and individual-oriented. Article I, paragraph 6 stipulated that “Every person may freely speak, write and publish his sentiments on all subjects… No law shall be passed to restrain or abridge the liberty of speech or of the press.” Meanwhile, Article I, paragraph 18 provided that “The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.”

“A basis for finding exceptional vitality in the New Jersey Constitution with respect to individual rights of speech and assembly is found in part in the language employed,” the court declared. The state constitution’s affirmative recognition of these freedoms, it noted, indicated a clear intent by its framers to offer a “more sweeping in scope” protection of those rights. Moreover, the clauses restricted not just government action but also unreasonably “oppressive conduct on the part of private entities that have otherwise assumed a constitutional obligation not to abridge the individual exercise of such freedoms because of the public use of their property” — such as Princeton University.

Having set the proper “constitutional backdrop,” the court turned to the question at hand: whether the state constitutional guarantees of speech and assembly applied to the distribution of political materials by Schmid on Princeton University’s campus. The court acknowledged that “the heart of the problem” was “the need to balance within a constitutional framework legitimate interests in private property with individual freedoms of speech and assembly.”

On a “sliding scale,” the court explained, the parallel rights embedded in Article I, paragraphs 6 and 18 would count for more on private property as its openness to the public increased. Therefore, a private institution like Princeton, whose campus facilities and hosted events were regularly available for public visits, had a greater obligation to ensure that the expressional rights of its guests, like Schmid, were not infringed. The court concluded that the university had unduly hindered Schmid’s right to self-expression — and that permitting on-campus solicitation, subject to reasonable “time, place, and manner” conditions, was in fact “entirely consonant” with its professed educational interest in fostering exchanges of diverse opinion.

Schmid’s Aftermath

The Schmid story did not end there, however. The university appealed the New Jersey Supreme Court’s decision to the U.S. Supreme Court, claiming that it impaired its rights under the 1st, 5th, and 14th Amendments. The federal tribunal agreed to hear the case, and in January 1982 issued an 8–0 per curiam opinion dismissing the appeal as moot because the university had revised its regulations regarding solicitation since the incident. A mere four days later, a vindicated but compliant Chris Schmid returned to Princeton’s campus, no longer threatened with arrest.

Schmid’s legacy has endured in New Jersey, with the state supreme court continuing to read the speech protections of the state constitution expansively. In 1994, for example, in New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corporation, the court relied on Schmid to hold that privately owned regional shopping centers — the substitute commercial forums and “downtown business districts” for a heavily suburbanized state — could not exclude leafleteers. In 2012’s Mazdabrook Commons Homeowners’ Association v. Khan, the court deployed Schmid to void a condominium complex’s ban on political signage in unit windows. Schmid has also been cited as an influential model by courts in 23 states, including Colorado, Massachusetts, Oregon, Pennsylvania, and Washington, as well as in Puerto Rico. And courts in New Zealand, too, have looked to the case for guidance in crafting their own jurisprudence.

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Schmid is a vivid illustration of how state charters can serve as independent guardians of our expressional rights. State constitutions and courts remain a vital “double security” for guaranteeing the preservation of the individual rights and liberties in our federal system.

Henry Hsiao is an undergraduate student at Princeton University.

Suggested Citation: Henry Hsiao, The Landmark Case That Extended Speech Rights on Private Property, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Nov. 25, 2025), https://statecourtreport.org/our-work/analysis-opinion/landmark-case-extended-speech-rights-private-property