The Mall's in Their Court

Forcing shoppers into the public square

Scott G. Bullock from the August/September 1995 issue

(Page 2 of 2)

The New Jersey Supreme Court's opinion rests on the premise of the demise of the so-called town square, a place where citizens could once gather to hear opinions expressed and ideas debated. The opinion is characterized by a nostalgic longing for this style of communication. But the court ignores the very nature of shopping malls. As Justice Marie L. Garibaldi observed in dissent: "The shopping mall is not a community....As such [it] should not be required to provide forum, place, or occasion for speech making, petition signing, parades, or cracker barrels to discuss local or global events. They are in business for business' sake...
[and] however romantic it may be to believe that the public repair to these galvanic places on a Saturday morning for more than bread or salt, they are not yet instruments of the state."

The majority of the New Jersey Supreme Court entirely neglected to consider the interests of the principal users of shopping malls--shoppers. Although the opinion by the court is vaguely conspiratorial about shopping mall owners deliberately destroying downtown areas in pursuit of profit, it is the consumer who ultimately chooses the shopping mall over downtown.

And in many areas, the demise of downtowns is hardly ordained. Indeed, many people who live in the suburbs like to experience, at least on occasion, the bustle, excitement, and variety on the streets and in the stores of the city.

Greatly contributing to the success of shopping malls, however, are the very aspects of modern city life customers like to avoid: crime, noisy protests, panhandling, lack of parking, litter, and so on. Guaranteeing access to political activists will go a long way toward undermining the very features that drove many consumers out of the city and into privately owned shopping malls.

It seems hard for the majority of the New Jersey justices to understand why some people do not want to be exposed to important and interesting political discourse at every moment of their lives. However, it should come as no shock that when most people go to a shopping mall, they rarely have any loftier motivation than to shop. Now, because of mandatory access, shoppers can be harangued by anti-war activists, handed condoms by Planned Parenthood supporters, or gaze upon photographs of aborted fetuses held by anti-abortion demonstrators. Mandated access can hardly be considered a victory for consumers.

The New Jersey Coalition case islittle more than social engineering by the judiciary. By blurring the definition between public and private, the court not only violates property rights but also eliminates the options currently available to consumers. Now, shopping malls are quasi-public entities, and consumers will suffer the consequences.

The reason for this mischievous and expansive interpretation by state courts of free speech guarantees can be traced to a 1980 decision by the U.S. Supreme Court, Pruneyard Shopping Center v. Robins. While recognizing that the First Amendment of the U.S. Constitution does not mandate access to privately owned shopping malls, the Court nevertheless held that state courts that permit individuals onto privately owned property do not violate the Fifth Amendment's Takings Clause or the free speech rights of the shopping mall owners.

The Pruneyard opinion, written by Chief Justice William Rehnquist, recognized property owners' right to exclude others, but stated that this right was not "essential" to the use or economic value of the property. Pruneyard thus trivializes the most fundamental aspect of property ownership--the right to exclude--because shopping mall owners can continue to engage in economic activity.

The unanimous opinion in Pruneyard also emphasized that shopping mall owners have already opened up their property to the public. The opinion ignores, however, the nature of the invitation. Shopping mall owners invite persons onto their property for a specific purpose--to shop, not to create any disturbance they wish to.

One of the shopping mall owners plans to appeal the New Jersey Coalition decision of the New Jersey Supreme Court to the U.S. Supreme Court. The time is certainly ripe for such an appeal. Since the time of the Pruneyard decision, a renaissance of property rights protection has occurred at the U.S. Supreme Court.

Several cases since Pruneyard have struck down attempts by government to turn private property into public places without compensation. The appeal provides an opportunity for the Court to reconsider its indefensible Pruneyard decision and to halt the rapid transformation of private property into public squares.

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