Freedom Of Speech And Private Property
Is an individual’s 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
center’s 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
State’s decision and how do these decisions affect the shopping
center
industry? Shopping Centers & Organizations In order to understand
how the
courts’ 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 1990’s, 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 centers’ 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 today’s
regional shopping center has taken the place of
yesterday’s 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). Today’s 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
students’ actions were not
bothering the mall’s 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 courts’ 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 students’ right to free expression and
the mall’s 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 state’s 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.
California’s 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 mall’s
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 that’s being said and further
stating that
state law protects this activity. In the case of New Jersey State
law, it
values an individual’s freedom of speech over a mall’s 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
mall’s 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 States’ 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 didn’t accept the shopping
centers’ 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 children’s 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 coalition’s free speech
was more important than the mall
owners’ property rights and that the mall’s
interests were taken into
account by allowing the mall to govern when, where
and how leaflets were
distributed. Additionally, the coalition’s freedom of
speech was sufficiently
narrow in scope to further protect the property
owner’s 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 mall’s 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 public’s invitation to use
the mall’s property; and (3) the
purpose of the coalition’s 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 mall’s ability to strictly regulate the
coalition’s
activities, which the Court took special note of, the Court
reasoned that
both the mall’s and coalition’s 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 mall’s standard
operating procedures
is questionable and, therefore, litigious. Why was one
area chosen over another?
How come a higher customer trafficked area
couldn’t be used? Why doesn’t the
mall allow someone to demonstrate every day
and what’s 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 mall’s
best interest? Answers to these
questions must be applied to all demonstrations
uniformly and without bias.
Even when a shopping center isn’t required by law
to allow demonstrations,
they still should have a written plan to deal with
demonstrators’ requests.
During the mid-1990’s it was common practice for a
mall’s "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 owners’ 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 don’t 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
state’s
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?
It’s
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, shouldn’t the mall pay for it and
not the
demonstrators? Might the mall be required to pay for other items that
the
demonstrators can’t 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
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Shopping Center Directory 1994, Eastern Volume
(1993) Rehnquist, J.
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(1980)" United States
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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
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