The fact that an individual, as a member of the public, has an interest in all public property does not mean that such an individual cannot commit a trespass on certain publicly owned property where his presence is not authorized. In relation to this point we adopt the analysis of the court in Hurley v. Hinckley, 304 F. Supp. 704, 709 (D. Mass. 1969), aff'd, 396 U.S. 277 (1970), in construing a similar statute: A reading of ยง 771-1 in its entirety lends support to the position that "lands of another" includes public land.
As used in the trespass statute, the words 'without right' expressly save constitutional rights.Hurley v. Hinckley, 304 F. Supp. 704, 710 (D. Mass. 1969) (Murray, J.),aff'd sub nom. Doyle v. O'Brien, 396 U.S. 277 (1970) (per curiam); see also Commonwealth v. Wolf, 34 Mass. App. Ct. 949, 951 (1993) ("The words 'without right' in the trespass statute . . . connote the absence of any right, permission, or license recognized by law as permitting an entry into an area described by the statute."
It has been held, of course, and we do not question, that a Massachusetts business property owner may not violate the constitutional or statutory rights of its business licensees under the shield of the Massachusetts trespass statute. See Hurley v. Hinckley, 304 F. Supp. 704, 710 (D.Mass. 1969) ("The words 'without right' in the context of the historical concept of trespass can only mean: [']without any legal right; without any right, permission or license recognized by law as permitting an entry into the area described in the statute.['] . . . The concept [of] legal right in the context of today's constitutional developments includes any right of the plaintiffs, individually or collectively, found in the Constitution of the United States . . . ."), aff'd mem., 396 U.S. 277 (1970); Smith v. Suburban Restaurants, Inc., 373 N.E.2d 215, 218 (Mass.
The First Amendment has never licensed destruction of property or imprisonment of public officials. See Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, 484 (1965); Hurley v. Hinckley, 304 F. Supp. 704, 709-710 (D.Mass. 1969), aff'd, Doyle v. O'Brien, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970). Ordinarily one to whom a statute is constitutionally applied will not be allowed to attack the statute on the grounds it might be unconstitutionally applied to others.
The words "authority or permission" in the context of a trespass prohibition can have only one meaning: right, permission, or license recognized by law as permitting an entry into the areas described in the statute. See Hurley v. Hinckley, D.Mass., 1969, 304 F. Supp. 704, aff'd sub. nom., Doyle v. O'Brien, 1970, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469. We hold that this language affords both potential offenders and those charged with the statute's enforcement sufficient information as to the conduct that is prohibited to satisfy the Fifth Amendment due process notice requirements and to avoid conflict with the Fourth Amendment principles of probable cause.
Cox v. Louisiana, supra, 379 U.S. at 555, 85 S.Ct. 453; LeClair v. O'Neil, supra. In that respect, we accept as a proper enunciation of relevant principle the conclusion of Judge Pettine in his well-reasoned opinion in Unemployed Workers Union v. Hackett, 332 F.Supp. 1372 (D. R.I. 1971), and the dictum of the three-judge court in Hurley v. Hinckley, 304 F.Supp. 704, 711-712 (D.Mass. 1969), aff'd sub nom., Doyle v. O'Brien, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970). See also Indiana Consumers and Workers Union et al. v. Swaim, Civ. No. 72F5 (D.C.Ind., July 12, 1972) (unreported).
Mass. Gen. Laws ch. 266, ยง 120. Plaintiffs, of course, do not assert that the statute is unconstitutionally vague under the First and Fourteenth Amendments to the Constitution; that challenge has long been rejected. See Hurley v. Hinckley, 304 F.Supp. 704 (D.Mass.1969), aff'd. sub nom.
. . ." Hurley v. Hinckley, 304 F. Supp. 704, 712 (D.Mass. 1969), aff'd per curiam sub nom. Doyle v. O'Brien, 396 U.S. 277 (1970).
Although physical presence in a public building with a specific public use is not pure speech, it may be protected by the First Amendment. Shanley v. Northeast Indep. School Dist., 462 F.2d at 971 n. 8; Hurley v. Hinckley, 304 F. Supp. 704 (D.Mass. 1969), aff'd mem. sub nom. Doyle v. O'Brien, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970) (per curiam)
Thus we cannot find that the exclusion was unlawful. Accordingly, the Defendant's threat to treat Plaintiff's entrance onto the property as a trespass fails to entitle Plaintiff to any relief. Hurley v. Hinckley, 304 F. Supp. 704 (D.Mass. 1969), aff'd per curiam sub nom Doyle v. O'Brien, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970). Our holding here should not be construed as affecting Bridges' right to the due process hearing ordered by Judge McGowan in the state court action based on a denial of membership rights, nor plaintiff's right to proceed with her racial or sex discrimination claims before the Human Relations Commission.