Freedom Of Speech And Private Property Essay

, Research Paper

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

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