Metropolitan News-Enterprise


Monday, February 2, 2009


Page 3


Distributing Flyers at Public School Not Free Speech, Court Rules


By SHERRI M. OKAMOTO, Staff Writer


The First District Court of Appeal has clarified that a public middle school campus is not an unlimited public forum for First Amendment purposes.

Ruling that a parent who was threatened with arrest if he did not cease handing out flyers on school property did not suffer a violation of his civil rights, Div. Four in an unpublished decision Thursday upheld the trial court’s grant of summary judgment in favor of the city and the police officer who detained Eric Moberg and asked him to leave the campus

Moberg’s son was enrolled at Westborough Middle School in South San Francisco. Shortly after Moberg’s son was suspended for refusing to serve detention and to dress for physical education class in November of that year, Moberg entered the school campus without permission and began distributing flyers.

Westborough’s principal, Beth Orofino, claimed that she asked Moberg to leave the school grounds, but Moberg refused. She also testified that she was subsequently advised by the district superintendent to call the police if Moberg engaged in similar behavior again.

Less than two weeks later, Moberg entered the school’s parking lot at the end of the school day when parents were arriving to pick up their children and began distributing flyers and soliciting signatures for a petition relating to his dissatisfaction with the district’s use of resources for detention supervision rather than enrichment activities.

Both Orofino and South San Francisco Police Officer Kenneth Hancock, who responded to Orofino’s call, claimed they observed Moberg disrupting traffic in the crowded parking lot, and the officer detained Moberg for approximately five minutes while he spoke to Orofino, who told him that Moberg did not have permission to hand out flyers on school property.

Arrest Threatened

Hancock told Moberg to stop distributing the flyers or he would be arrested for violating Penal Code Sec. 626.7, which prohibits any person who is not required to be present on campus from remaining on a school campus after a school official has requested he leave if it reasonably appears that the person is committing any act likely to interfere with the peaceful conduct of school activities, or has entered the campus for the purpose of committing any such act.

Moberg claimed he was on campus to pick up his son, but Orofino said Moberg’s son had not been at school that day and Moberg left the area.

Proceeding in pro per, Moberg sued Hancock and the city in the San Mateo Superior Court  asserting violations of his rights to free speech, assembly, and liberty, but the trial court granted motions for summary judgment in favor of the defendants.

Representing himself on appeal, Moberg contended that Sec. 627.1 lists the parent of a student at the school as an individual who is not an “outsider” forbidden to enter or remain on school grounds without permission by Secs. 627.2 through 627.10, and that Sec. 627(c) declares that it was not the intent of the Legislature in enacting the statutory scheme to infringe upon the legitimate exercise of constitutionally protected rights.

However, Presiding Justice Ignazio J. Ruvolo noted that Hancock had relied on Sec. 626.7 in detaining Moberg, and that Sec. 626.7 does not treat the parent of a student any differently than any other person in his opinion for the appllate court.

Sec. 627.10 also expressly permits persons on the enumerated list provided by Sec. 627.1 to be punished if their presence or conduct on school property violates another provision of law, Ruvolo added.

Undisputed Evidence

Given the undisputed evidence that the parking lot was crowded with vehicles, parents and children, Ruvolo explained that Orofinio reasonably concluded Moberg’s presence and activities in the parking lot were likely to cause a safety problem, which rendered Moberg’s conduct unlawful under Sec. 626.7.

Ruvolo emphasized that the key word in the statement of legislative intent contained in Sec. 627(c) was that the statute was not intended to prohibit “lawful” activities in concluding that the First Amendment did not entitle Moberg to remain on the campus.

Based on Orofino’s statement that Moberg was not authorized to be on campus distributing literature, Ruvolo reasoned that when Hancock detained Moberg, the officer was in possession of objective, specific facts indicating that Moberg was engaged in a violation of Sec. 626.7, providing him with probable cause to conduct an investigative detention.

In addition, Ruvolo wrote, “[d]ue to the special nature of schools under California law, and the fact that access to schools is expressly limited by statute, all visitors on school grounds may be detained, even if not suspected of any criminal activity, for the purpose of ascertaining who they are, why they are there, and whether or not they are subject to exclusion from the school grounds for any reason.”

No Liability

The undisputed facts established that Hancock did not infringe on any of Moberg’s rights as a matter of law, Ruvolo concluded, continuing that insofar as Hancock was not liable, the city was not vicariously liable for his actions.

In affirming the trial court’s grant of summary judgment, Ruvolo stressed that the judgment would not prevent Moberg from exercising his right to contact other parents of students at the school to solicit support for his views, and rejected Moberg’s claim that the judgment operated as a prior restraint of his speech.

Justices Timothy A. Readon and Patricia K. Sepulveda joined Ruvolo in his opinion.

The case is Moberg v. City of South San Francisco, A121713.


Copyright 2009, Metropolitan News Company