Legal Briefs

States Speak Out on Free Speech in Malls

By Samuel H. Weissbard, JD, and Camellia K. Schuk, JD |

Across the country, courts have weighed the right of free speech against private property rights with differing results. While the majority view says that speech is not protected on private property, some courts have held that free speech exercised in privately owned shopping centers is protected by certain state constitutions. As retail property owners expand into different states, they should determine whether free speech on private property may be protected by a state’s constitution, and if so, to what degree.

Federal Protection
The First Amendment of the U.S. Constitution provides that "Congress shall make no law ... abridging the freedom of speech. ..." The protection provided by the Constitution applies to government action that abridges the right of free speech.

However, the U.S. Supreme Court in 1946 found that free speech was protected on the streets in the business section of a company-owned town, even though the free-speech restriction was imposed by a private party rather than the government. In that case, Marsh v. Alabama, the court ruled that the town was indistinguishable from other municipalities in appearance, function, and accessibility. The key difference was that the company owned the entire town and had taken over all municipal functions.

The Supreme Court further expanded its decision in the 1968 case of Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza. Noting that a mall was the functional equivalent of the privately owned business block in Marsh, the court held that peaceful picketing that targeted a single store and was done in the privately owned parking lot adjacent to the mall had protection.

This decision, however, was short-lived. In his dissent to the majority decision in Amalgamated, Justice Byron White had noted that the mall "is not a town but only a collection of stores. In no sense are any parts of the shopping center dedicated to the public for general purposes or the occupants of the plaza exercising official powers." He also noted that although the public was invited to the mall, the invitation only was to shop for products being sold.

Four years later the Supreme Court ended the argument that a shopping mall is the functional equivalent of a company town in Lloyd Corp. v. Tanner. It found that, unlike the company-owned town in Marsh, the shopping center in Lloyd did not involve a private party assuming municipal functions or powers. It held that private property generally does not lose its private character merely because the public is invited to use it for designated purposes. Subsequent cases confirmed that the First Amendment does not protect free speech in privately owned malls.

State Interpretations Vary
While the U.S. Constitution does not protect free speech in shopping centers, state constitutions may provide more protective standards. This additional protection varies by state, type of speech, and characteristics of the private property.

The majority of courts — including those in Arizona, Georgia, New York, Pennsylvania, and South Carolina — have interpreted the free-speech provisions of their state constitutions as providing the same but not broader protection than the First Amendment provides.

For example, the Arizona Court of Appeals held that the free-speech and initiative provisions of the Arizona Constitution did not protect the solicitation of signatures in privately owned malls for the recall of the then-governor in Fiesta Mall Venture v. Mecham Recall Comm. in 1988. In its decision, the court focused on its observation that, unlike a town or public center, a mall "concerns itself with only one facet of its patrons’ lives — how they spend their money."

Many court decisions in these states also have noted that state funding of private development does not constitute sufficient state involvement to make the state constitution protections of free speech applicable.

For example, the Minnesota Supreme Court concluded earlier this year that neither the presence of public financing alone nor public financing coupled with an invitation to the public to enter private property is sufficient to transform private property into public property for purposes of extending free-speech protection under the state’s constitution in Minnesota v. Wicklund.

In contrast, courts in California, Massachusetts, New Jersey, and Oregon have held that their state constitutions provide broader protection of free speech in shopping centers than the U.S. Constitution. However, the protection provided by these states still is limited in scope.

First, the type of speech that is protected is limited. California provides protection for the rights to speak and petition; Massachusetts limits protection to ballot access; Oregon limits protection to initiative petitions; and New Jersey limits protection to leafleting and related speech supporting or opposing causes, candidates, or parties.

Second, the nature of the private property on which speech may be protected also is limited. In a 1979 decision, the California Supreme Court held that free speech was protected under the California Constitution even on privately owned property and without the involvement of state action in Robins v. Pruneyard Shopping Center. The case involved a large shopping center. The plaintiffs were high school students who had set up a card table in the corner of the center’s central courtyard to seek support to oppose a U.N. resolution.

In reaching its decision that the plaintiffs’ rights to free expression under the California Constitution outweighed the protected private-property rights of the center’s owner, the California Supreme Court placed significant emphasis on the role of suburban shopping centers in modern life. It found that the suburban mall had supplanted the typical downtown business district as an area of public gathering and activities.

California’s Supreme Court also noted that through advertising and "the lure of a congenial environment," people were induced to shop, seek entertainment, and mix with others at the shopping center. Subsequent California decisions have clarified that the private property involved must be open to the public to attract patrons not only to shop but also to congregate on the property.

Third, owners of shopping centers that sufficiently are public to become forums for free speech may place reasonable restrictions on the exercise of that right. For example, this August the Appellate Division of the New Jersey Supreme Court in The Green Party of New Jersey v. Hartz Mountain Industries, Inc. upheld restrictions imposed by the owner of a mall about the frequency and time of day during which leafleting was allowed, the amount of insurance to be carried by the leafleters, and blackout periods.

Because the protection of free speech on private property varies from state to state, private-property owners — and shopping center owners in particular — are well advised to tailor their free-speech policies to the requirements of their state.