concurring and dissenting in part.
I concur in the judgment of the Court and in Parts I, III, IV and V of Justice Handler’s opinion for the majority. I do not, however, share the majority’s views in Part II of the opinion, which discusses and all but decides whether defendant’s conviction for criminal trespass was in violation of the First and Fourteenth Amendments of the United States Constitution. The Court’s ruling that the conviction was contrary to Article I, paragraphs 6 and 18 of the New Jersey Constitution renders discussion of the First Amendment unnecessary. Because the majority has nevertheless seen fit to examine in detail the questions arising under the federal Constitution, see ante at 542-553,1 find the following observations warranted.
The three “shopping center cases” decided by the United States Supreme Court, Hudgens v. N. L. R. B., 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); see also PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), and their intellectual predecessor, Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), might appear upon first examination to establish an alternative means of satisfying the Fourteenth Amendment’s requirement of “state action.” Indeed, in the Supreme Court’s most recent discussion of the concept of “state action,” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), the Court described these earlier decisions as “[a] second line of cases under the *570public-function doctrine,” id. at 158, 98 S.Ct. at 1734 an exception to the requirement of governmental action where private persons exercise powers “traditionally exclusively reserved to the State,” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). See Flagg Bros., supra, 436 U.S. at 157-159, 98 S.Ct. at 1733. Yet the divergent results in these cases cannot be reconciled merely by examining whether “state action” was present. In each case, the enforcement of trespass laws permitted the private owners of a business district to exclude those who would use the property for speech-related activities. None of the “shopping center cases” rested on the state action doctrine as the ground of decision. These holdings seemed to be concerned with a different question: whether the value of the specific property rights enforced by the state outweighed the harm to the particular First Amendment interest at stake. See generally Glennon & Nowak, A Functional Analysis of the Fourteenth Amendment “State Action” Requirement, 1976 Sup.Ct.Rev. 221, 232 236. The use of the label “state action” may be misleading, for the focus of attention here has been the presence or absence of a substantive constitutional violation.
This view is confirmed by examining the four cases involving First Amendment protection of expressive activity on private property. In the earliest decision, Marsh v. Alabama, supra, Justice Black summarized the Court’s reversal of a conviction for criminal trespass upon a privately owned “company town” as follows:
In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute, fn so far as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand. [326 U.S. at 509, 66 S.Ct. at 280 (emphasis added)]
While Marsh emphasized the assumption of traditional governmental functions by the owners of the “company town,” the Court’s holding also focused on the government’s direct enforcement of the town’s restrictive practices by the imposition of *571criminal sanctions. The state’s decision to protect private property at the expense of expressive activity was constitutionally impermissible. “When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.” Id.
These two themes-the presence of direct governmental involvement in the enforcement of private property rights and the balancing of property and First Amendment rights also run through the three “shopping center cases.” In Logan Valley, supra, the Court described the question presented as “whether Pennsylvania’s generally valid rules against trespass to private property can be applied in these circumstances to bar petitioners from the [shopping center] premises.” Logan Valley, supra, 391 U.S. at 315, 88 S.Ct. at 1606. The Court answered in the negative and recognized a constitutional right to engage in expressive activity on private property. Id. at 325, 88 S.Ct. at 1612. None of the dissenting members of the Court-including Justice Black, the author of Marsh objected to the result in Logan Valley because of an asserted absence of “state action.” See id. at 327-333, 88 S.Ct. at 1613 (Black, J., dissenting); id. at 333-337 (Harlan, J., dissenting); id. at 337 340, 88 S.Ct. at 1618 (White, J., dissenting).
Four years later in Lloyd Corp., supra, when the Court “substantially repudiated the rationale of Logan Valley,” PruneYard Shopping Center, supra, 447 U.S. at 81, 100 S.Ct. at 2040, 64 L.Ed.2d at 751, the reason was not the absence of “state action.” The Court in Lloyd Corp. considered whether the protection of free expression in a shopping center that was unrelated to the center’s operations “violates rights of private property protected by the Fifth and Fourteenth Amendments.” Lloyd Corp., supra, 407 U.S. at 553, 92 S.Ct. at 2221. The Court recognized the importance of the “state action” requirement under the First and Fourteenth Amendments. See id. at 567, 92 S.Ct. at 2228. Although it did not address whether the provision of remedies under the trespass laws, which both Logan Valley and Marsh cited, met that requirement, the Court noted a pronouncement *572in Logan Valley that implicitly supplied the requisite element of “state action”:
[T]he State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put. [Id. at 560, 92 S.Ct. at 2224 (quoting Logan Valley, supra, 391 U.S. at 319 320, 88 S.Ct. at 1608) (emphasis added)]
Without challenging the soundness of this observation, the Court in Lloyd Corp. held “that there ha[d] been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle [the] exercise therein [of] the asserted First Amendment rights.” Lloyd Corp., supra, 407 U.S. at 570, 92 S.Ct. at 2229. The majority reached this conclusion after balancing the rights in question:
It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist. Such an accommodation would diminish property rights without significantly enhancing the asserted right of free speech. [Id. at 567, 92 S.Ct. at 2228]
Unlike in Logan Valley, therefore, enforcement of property rights imposed no significant burdens on First Amendment rights.
The conflict between Lloyd Corp. and Logan Valley was resolved by the Court in Hudgens v. N. L. R. B., supra, the third of the “shopping center cases.” In contending that “the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case,” Hudgens, supra, 424 U.S. at 518, 96 S.Ct. at 1035, the Court observed generally that the Constitution did not provide protection or redress “against a private corporation or person who seeks to abridge the free expression of others * Id. at 513, 96 S.Ct. at 1033. Marsh v. Alabama, supra, was an exception to this principle. Id. The Hudgens Court found the exception was grounded in the absence of any meaningful distinction between the functions of a company town and a conventional municipality. Id. at 514, 96 S.Ct. at 1033. The Court did not discuss the significance of the State’s use of the trespass laws to enforce the company town’s restrictions on speech. However, what is equally important for present purposes is that the Court in Hudgens did not reject the function of *573criminal trespass laws in supplying “state action.” Instead, the Court found Lloyd Corp. and Logan Valley irreconcilable and therefore held “that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.” Id. at 521, 96 S.Ct. at 1037; see PruneYard Shopping Center, supra, 447 U.S. at 80-81, 100 S.Ct. at 2040, 64 L.Ed.2d at 752.
It thus appears that in the development of First Amendment doctrine from Marsh through Hudgens, the Supreme Court was principally concerned with the reach of substantive constitutional protection for expressive activity, and not with the limits of the “state action” doctrine. Consistent with the approach of these decisions, I would be inclined to rule that the definition of common-law property rights, and their enforcement against defendant through criminal trespass laws, constitute state action. See New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); King v. South Jersey Nat’l Bank, 66 N.J. 161, 180-203, 330 A.2d 1 (1974) (Pashman, J., dissenting).
Of course, the presence of state action does not itself spell out a violation of First Amendment rights; it is merely the premise for substantive constitutional inquiry. Because Logan Valley, Lloyd Corp. and Hudgens focus on the federal Constitution’s safeguard of free speech against judicial enforcement of private property rights, the First Amendment issue before us is not whether Princeton University is a “company town,” see Marsh v. Alabama, supra. Looking instead to Lloyd Corp. as the guiding precedent, we would consider whether the value of the university’s property rights outweighs the harm to defendant’s expressive rights. The crucial factor in this inquiry is whether there has been “such dedication of” Princeton University “to public use as to entitle [the] exercise therein [of] First Amendment rights,” Lloyd Corp., supra, 407 U.S. at 570, 92 S.Ct. at 2229. The non-profit, educational, and indeed public purposes of the university would then assume special relevance.
*574In dictum wholly unnecessary to the Court’s judgment, the majority states that the existence of what it considers to be adequate “alternative means of communication” would deprive defendant of a First Amendment right to engage in expressive activity at the university. Ante at 550-551. It relies on Lloyd Corp. for its apparent view that the absence of an adequate alternative forum is an absolute prerequisite for federal constitutional protection. Even assuming this to be so, I do not believe the majority has properly addressed whether defendant could adequately deliver his message from public property to students residing on the university campus. A shopping center has no residents; thus a location on public property near an entrance to the center permits full access to its incoming patrons. See Lloyd Corp., supra, 407 U.S. at 566 567, 92 S.Ct. at 2227. A predominantly residential institution like Princeton University presents different problems of access that are not so easily resolved. Cf. State v. Shack, 58 N.J. 297, 277 A.2d 369 (1971) (ownership of real property does not include the right to bar access to governmental services available to migrant workers residing on the property by invoking the trespass laws). Sites outside the campus or on the fortuitously located public street running through it may not provide an adequate forum for communicating with the residents of the university. The present record describes the location and physical plant of the university but not the traffic patterns of its residents. See ante at 551. It can support a judgment about access to lifeless buildings but not one about access to people. Even if the absence of an adequate alternative forum were a crucial requirement, the majority’s summary analysis does not warrant the conclusion that defendant receives no protection from the First Amendment.
Furthermore, I would accord less significance to the presence of an adequate alternative forum than does the majority. It is true that in Lloyd Corp. the Court distinguished the facts before it from those in Logan Valley on two grounds: that the expressive activity was unrelated to the operations of the shopping center, see Lloyd Corp., supra, 407 U.S. at 564 565, 92 S.Ct. at *5752226, and that “adequate alternative avenues of communication exist[ed],” id. at 567, 92 S.Ct. at 2228. But in Hudgens the Court repudiated these distinctions as constitutionally insignificant. See Hudgens, supra, 424 U.S. at 518 519, 96 S.Ct. at 1035. The Court expressly rejected any approach to the First Amendment that would resolve rights of free speech within a shopping center by reference to the speech’s content. Id. at 520, 96 S.Ct. at 1036. Addressing the existence of alternative means of communication in Lloyd Corp., the Court noted in Hudgens that “the [shopping center] in Lloyd more closely resembled the business section in Chickasaw, Ala.” the “company town” of Marsh-than the center in Logan Valley. Id. at 518 n.5, 96 S.Ct. at 1035 n.5. The dispositive factor in Lloyd Corp. that survived the criticism of Hudgens was the absence of “such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents therein the asserted First Amendment rights.” Lloyd Corp., supra, 407 U.S. at 570, 92 S.Ct. at 2229. Contrary to the majority, I believe this ruling expresses the primary criterion for determining whether the First Amendment afforded defendant a right to engage in expressive activity on the grounds of the university. This factor is crucial because it determines whether interests in private property outweigh the harm to defendant’s right to free speech.
As I have said, there is no need to resolve this issue -or to discuss it gratuitously-for we have decided that defendant’s conviction for trespass offends the State Constitution. I feel compelled to write only because the majority has expressed what I believe is a restrictive view of the first guarantee in our Bill of Rights. Certainly, the contrast between that view and the Court’s State constitutional ruling is difficult to explain. Since I believe the contrast is as unjustified as it is unnecessary, I do not join in Part II of the majority’s opinion. I concur, however, in both the judgment of the Court and the balance of my Brother Handler’s opinion.