Freedom Of Speech And Private Property

 Is an individualís right to freedom of speech, as granted by the First
Amendment to the U.S. Constitution, valid on private property, which is owned by
someone else?

     Specifically, can an organization not associated with a shopping center use the
shopping centerís property to promote their cause? The U.S. Supreme Court has
left the answer to this question up to the individual states. The majority of
states, to date, have answered "no"; however, several states, most notably

California and New Jersey, have answered "yes". What is the basis for each

Stateís decision and how do these decisions affect the shopping center
industry? Shopping Centers & Organizations In order to understand how the
courtsí decisions affect the shopping center industry, we must first
understand what a shopping center is and who the organizations are. As referred
to in the two most notable court cases, Pruneyard v. Robins ("Pruneyard")
and NJ Coalition Against War in the Middle East et al. v. J.M.B. Realty Corp. et
al. ("JMB"), a [regional] shopping center is defined as one that is between

300,000 square feet and 1,000,000 square feet in size and includes at least one
large, over 100,000 square feet department store. During the 1990ís, regional
shopping centers have given way to super regional shopping centers. Super
regional shopping centers are over 1,000,000 square feet in size and usually
have four or more large department stores. For comparison in Arlington, Texas,

The Parks at Arlington Mall and Six Flags Mall would be considered super
regional malls while Festival Marketplace Mall would be considered a regional
mall. The organizations that were involved in Pruneyard and JMB consisted of
peaceful political activists who were protesting Zionism and the Gulf War,
respectively. As far as a shopping center is concerned, anyone not associated
with operating the center i.e., employees, contractors, etc., or
retailers/merchants would be considered a potential customer or part of an
organization, depending on if their reason for coming to the mall was to shop.

The shopping center, of course, wants everyone to be a customer since their
primary business is commercial in nature. First Amendment The First Amendment to
the U.S. Constitution reads, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or the press; or the right of people peaceably
to assemble, and to petition the government for a redress of grievances."
(Amendment I, 1) While this powerful amendment has very broad implications, it
also has limitations. The U.S. Supreme Court has held that the Federal

Constitution and its accompanying amendments give no general right to free
speech in shopping centers since the centersí course of business is not"state action". State actions are those actions taken by local government
entities or public schools. This limitation is what forces the U.S. Supreme

Court to leave the decision of free speech in shopping centers up to the
individual states, their state constitutions and police powers. Evolution of

Shopping Centers It has been argued, and sometimes accepted, that todayís
regional shopping center has taken the place of yesterdayís downtown business
district. From 1972 to 1992 the number of regional and super regional malls in
the nation increased by roughly 800% (National Research Bureau 1). The reason
for this phenomenal increase is the migration of residents from the city to the
suburbs and the accompanying relocation of retail from downtown to the "burbs".

Shopping centers, by design, have made themselves one-stop destinations. Food,
entertainment, apparel and other consumer goods are centralized in a
climate-controlled environment. The downtown business district of old once
afforded social and political organizations access to the masses. There is no
question that the downtown streets and sidewalks were, and still are, public
property. To make the distinction between a public downtown and private shopping
center more confusing, it is not uncommon for a mall to have a U.S. Post Office
as a rent paying merchant, or a police substation in a vacant space.

Additionally, it is standard procedure to hire off-duty police officers to
supplement mall security guards and even on-duty police officers, although much
less frequently. Another blurring of the distinction between public and private
property is when a private mall developer uses some public funds to construct
the mall or its infrastructure. State courts, so far, have ruled that the use of
public funds does not convert a private mall into public property. (Mall of

America, 1). Todayís shopping centers provide social and political
organizations an ideal place to interact with thousands of people on a daily
basis. Shopping centers spend a great deal of money to entice people to come to
the mall. For example, during the two weeks preceding the grand opening of

Grapevine Mills Mall in Grapevine, Texas, the owners of the shopping center
spent approximately $2 million on advertising to draw an anticipated 50,000
shoppers during their opening weekend. The shopping centers have a contractual
obligation to advertise the center on behalf of its merchants. Organizations,
rightfully so, see the shopping center as one-stop destination. They can reach
the largest amount of people in the quickest and most economical fashion by
going to the mall. For example, during a non-holiday week, traffic at The Parks
at Arlington Mall averaged 55,000 customers, at Six Flags Mall 32,000 and at

Festival Marketplace Mall 25,000, approximately. During the Christmas Season,
which runs from the day after Thanksgiving to New Years Day, traffic will
usually triple and sometimes quadruple. Case Study- Pruneyard The U.S. Supreme

Court case of Pruneyard Shopping Center v. Robins, appealed from the Supreme

Court of California, involved a group of high school students who were trying to
peacefully solicit support for their opposition to a United Nations resolution
against "Zionism". On a Saturday afternoon, a particularly heavy customer
traffic day for shopping centers, the students set up a table inside of

Pruneyard Shopping Center, distributed pamphlets and asked mall customers to
sign petitions. Court records indicated that the studentsí actions were not
bothering the mallís customers. A mall security guard asked the students to
leave since their activities were against mall regulations. The students left
and later filed a lawsuit against the mall to allow them to circulate their
petitions. The students lost their suit in Superior Court and also in the

California Court of Appeals. They then appealed to the California Supreme Court,
where the lower courtsí verdicts were reversed. Pruneyard Shopping Center then
appealed to the U.S. Supreme Court. The issues that the courts took into account
during these proceedings included the studentsí right to free expression and
the mallís property rights. Within these broad issues surfaced the questions
of whether a privately owned mall loses its private "status" when it invites
the public onto its property, whether forcing the mall to permit uses other than
shopping constitutes the taking of property without just compensation and also
the deprivation of property without due process of law. The U.S. Supreme Court
decided a stateís constitution takes precedence over the Federal Constitution
when dealing with the issue of free speech if the state constitution offers more
power to its citizens. Such was the case in California, and also New Jersey,

Oregon, Colorado, Washington and Massachusetts. These states protect speech and
petitioning, when reasonably done, in privately owned shopping centers.

Californiaís Constitution states, "Every person may freely speak, write and
publish his or her sentiments on all subjects, being responsible for the abuse
of this right. A law may not restrain or abridge liberty of speech or press."
(Pruneyard, 8) The U.S. Supreme Court does not consider it taking a mallís
property by allowing the signing of petitions because the mall is able to
severely limit when, where and how this activity takes place. The mall is
allowed to limit these actions in such a way as to minimize any disruption to
their normal business. As such, there should not be any negative impact on the
value of the mall. Furthermore, the mall is able to erect signage next to this"unwelcome" activity disclaiming anything thatís being said and further
stating that state law protects this activity. In the case of New Jersey State
law, it values an individualís freedom of speech over a mallís property
rights. The belief is that a shopping center gives up a certain amount of its
rights by inviting the public to use its property for almost anything, even
though the mallís primary business is commercial in nature. If mall access was
denied to "non-shoppers", it was reasoned that a major channel of
communication to the public would be cut off. This was not acceptable to the

U.S. or California Supreme Courts. Case Study- JMB The New Jersey Supreme Court
case of New Jersey Coalition Against War in the Middle East, et al. V. J.M.B.

Realty Corporation, et al. involved a coalition of several organizations who
opposed the United Statesí involvement in the Persian Gulf War. These
organizations tried to hand out leaflets at ten regional shopping centers and
one community center, which is significantly smaller in size than a regional.

The majority of the properties denied access to the organizations. However, four
did grant permission and the organizations distributed their leaflets at two of
them. The coalition sued for access to the malls in order to distribute
leaflets. Although the war was over by the time this case reached the New Jersey

Supreme Court, the Court ruled in favor of the coalition. The Court accepted
that regional shopping centers had taken the place of downtown business
districts. It didnít accept the shopping centersí argument that distributing
leaflets was contrary to its main purpose of encouraging as many people as
possible to come to the mall and shop. The Court sighted many instances where
the malls allowed and promoted activities that had nothing to do with shopping,
such as childrenís ID programs, Santa Claus and Easter Bunny visits and
supplying community booths for the public to use on an ongoing basis and special
community days throughout the year. As with the first case study, the Court
ruled that the coalitionís free speech was more important than the mall
ownersí property rights and that the mallís interests were taken into
account by allowing the mall to govern when, where and how leaflets were
distributed. Additionally, the coalitionís freedom of speech was sufficiently
narrow in scope to further protect the property ownerís rights. The coalition
was only allowed to distribute leaflets. The coalition could not hound
customers, nor could it conduct speeches, demonstrations or parades. It could
only speak with patrons in a normal voice and could not use megaphones,
bullhorns or even a soapbox. Finally, it was determined that the coalition could
not solicit any donations from customers since that action would directly
compete with the mallís tenants. The New Jersey Supreme Court had to answer
three questions when ruling on this case: (1) the nature, purpose and primary
use of the malls; (2) the extent and nature of the publicís invitation to use
the mallís property; and (3) the purpose of the coalitionís activity in
relation to both the public and private use of the property. In this case, the

Court combined questions one and two because they thought they were so
interwoven. The primary purpose of the mall was to make a profit by attracting
as many people as possible into the mall. Once in the mall, it was believed that
a large number of people would become shoppers and make a purchase. With that in
mind, malls advertised to everyone with promotions that many times had nothing
to do with shopping. All were invited to come to the mall. As a result of this
open door policy, coupled with the mallís ability to strictly regulate the
coalitionís activities, which the Court took special note of, the Court
reasoned that both the mallís and coalitionís activities could coexist
without significantly harming each other. Impact How do the decisions from these
cases affect the shopping center industry? Centers that are located in a state
whose constitution offers the freedom of speech more protection than the Federal

Constitution (California, New Jersey, Oregon, Washington, Colorado and

Massachusetts) have a slightly heavier burden to carry than those in other
states. A shopping center manager must now formulate standard operating
procedures that state where all "demonstrations" will take place, when they
can be held and how they are to be held in order to minimize disruption to
customers and merchants. Although the courts have given shopping centers great
latitude to regulate these "demonstrations", they have provided a whole new
avenue of litigation. Each section of a mallís standard operating procedures
is questionable and, therefore, litigious. Why was one area chosen over another?

How come a higher customer trafficked area couldnít be used? Why doesnít the
mall allow someone to demonstrate every day and whatís wrong with having two
opposing groups demonstrating at the same time? Is it too burdensome to require
organizations to provide insurance as a precondition to using mall property? If
not, than what dollar limit of insurance is sufficient to protect the mallís
best interest? Answers to these questions must be applied to all demonstrations
uniformly and without bias. Even when a shopping center isnít required by law
to allow demonstrations, they still should have a written plan to deal with
demonstratorsí requests. During the mid-1990ís it was common practice for a
mallís "community access policy" to be as follows: no non-retail related
activities on mall property. This meant no Boy or Girl Scouts and no Salvation

Army. It also meant a lot of very unhappy and influential organizations. As a
mall manager who had to enforce such a policy, explaining the policy in the
following way soothed many people over. If the mall allows the Boy Scouts to use
mall property, than it must also allow the Ku Klux Klan in or face a
discrimination lawsuit by them. Rather than face a possible lawsuit, everyone
would be denied the use of the mall, except for shoppers. With the proliferation
of e-commerce, these access policies have been greatly eased. It is still
important, however, that each mall have a standardized method of accepting and
scheduling non-shopping activities within the mall. At Six Flags Mall for
example, there is a community room that is available to all organizations for a
nominal clean-up fee of $20.00 per use. They use a standardized reservation
form, which allocates the room on a first-come, first-served basis. The room is
away from the main corridors of the mall and has its own, separate entrance. The
only rules governing the room are no outside food or drink is allowed and no
smoking is allowed. At Festival Marketplace Mall, there is a center court stage
that is available free of charge to most performing arts organizations, school
bands, dance schools, choirs, etc. There is a standardized form that applicants
must fill out to book the stage. A certificate of insurance is required, or it
can be waived if all participants sign a waiver and a hold harmless agreement.

Each group is required to submit a sample of their performance. This sample is
used to determine if the group is appropriate for the stage. Some groups have
been denied use of the stage for the following reasons: too many members to fit
on the stage, proposed music was too loud, or the act was not suitable for a
family oriented business. Although each one of these denials are grounds for
litigation, each of them has a solid, documented reason for being invoked.

Future The shopping center industry must be prepared for new litigation since
the realm of freedom of speech is always a slippery slope. As outlined above,
requests from demonstrators are a major area for litigation. Less than
twenty-five states have decided if malls must allow demonstrators access to
their property, which includes the states named throughout this paper. What
waits to be seen is how the remaining states will rule when the question of free
speech versus property ownersí rights is raised. It also waits to be seen how
the various courts will rule on the "reasonable regulations" malls can
impose on demonstrators. It seems foolhardy for a court to set down a judgment
about these regulations that could affect all malls in one state when each mall
is different. The same guidelines usually donít work for each location.

Conclusion The shopping center industry is left waiting for the next lawsuit to
be filed regarding freedom of speech. The outcome of the suit will depend on the
stateís constitution where the suit is filed. If the shopping center loses and
every mall in that state is forced to allow demonstrations, I would guarantee an
appeal to the U.S. Supreme Court. Will the Supreme Court hear the case? Itís
doubtful, based on previous court decisions. Potential new litigation to come
from California, New Jersey, Washington, Oregon, Colorado and Massachusetts
might raise the question of whether a shopping center needs to subsidize
demonstrations on mall property. Since the insurance policy the mall requires
primarily benefits the mall, shouldnít the mall pay for it and not the
demonstrators? Might the mall be required to pay for other items that the
demonstrators canít afford, like signs? As a certified shopping center manager
with over ten years of experience and a member of the International Council of

Shopping Centers, I am troubled by the rising legal costs of doing business. (Cesare

1) The general public is invited into shopping centers to spend their money on
food, apparel and/or entertainment. Newspapers are not forced to print
editorials, shopping centers should not be forced to allow someone access to its
valuable commodity, customers, without some type of reimbursement

Bibliography

National Research Bureau, Shopping Center Directory 1994, Eastern Volume
(1993) Rehnquist, J. "Pruneyard Shopping Center V. Robins, 447 U.S. 74
(1980)" United States Supreme Court 09 June 1980. 05 April 2000

Wilentz, C.J. "New Jersey Coalition Against War in the Middle East, et al. V.

J.M.B. Realty Corporation, Etc. et al. (A-124/125-93)" New Jersey Supreme

Court 20 December 1994. 05 April 2000

"Amendment I." First Amendment Cyber-Tribune 03 January 1997. 07 April 2000

"Judge rejects motion to dismiss trespassing charges in NH access case."

Shopping Centers Today 23 December 1998. 07 April 2000

"Mall of America wins key access ruling." Shopping Centers Today 12 March

1999. 05 April 2000