Is an individuals 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 centers 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 States 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 1990s, 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 todays regional shopping center has taken the place of yesterdays 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). Todays 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 malls 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 malls 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 states 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. Californias 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 malls 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 thats being said and further stating that state law protects this activity.
In the case of New Jersey State law, it values an individuals freedom of speech over a malls 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 malls 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.
