The Law: The Mall's in Their Court

Forcing shoppers into the public square


The right to keep unwanted intruders off our property is a cornerstone of American liberty. But not if one's property is a shopping mall.

If a recent ruling from the New Jersey Supreme Court in the case of New Jersey Coalition Against War in the Middle East et al. v. JMB Realty Corp. et al. is not overturned, Saturday afternoon shoppers in New Jersey may find themselves regularly fighting for space with anti-war protesters or homeless-rights activists.

The New Jersey case began in November 1990, when a national debate raged over America's impending war with Iraq. An anti-war coalition in New Jersey began distributing literature and requesting donations at privately owned shopping malls. At malls in Short Hills and Hackensack, representatives of the groups began to canvass shoppers without asking permission or even advising the malls.

After receiving complaints from surprised customers, mall managers informed the demonstrators that they prohibited leafletting and demonstrations on their property, and asked them to leave. A month later, the demonstrators were back, running through the mall with banners chanting anti-war slogans and pushing customers out of the way. Customers understandably left the mall in droves.

Incensed that the malls were treating them like common trespassers, the anti-war organizations, with the assistance of the American Civil Liberties Union, filed a lawsuit demanding access. After losing in the lower courts, the New Jersey Supreme Court ruled late last year that the coalition had a free speech right under the state constitution to leaflet at the malls.

Chief Justice Robert Wilentz's opinion for the court is a paean to free speech rights and a dispirited essay on the decline of the traditional town square. Wilentz determined that because shopping malls played such an enormous role in the decline of downtown areas, they now have an obligation to provide a forum for social activists. The chief justice dismissed the delineation between private and public property as an anachronism.

But Justice Wilentz understands the desire to exclude outsiders in other contexts. In 1989, the same Justice Wilentz denied the producers of the film version of Tom Wolfe's The Bonfire of the Vanities use of an old New Jersey courtroom commonly used for movie production because he didn't like the book's depiction of minorities and thought it inappropriate for a New Jersey courthouse to be used to film a courtroom scene.

Unfortunately for Justice Wilentz, free speech rights apply to public forums. A U.S. District Court judge issued a stinging rebuke to Wilentz, overturning his order and holding that the learned justice had deprived the producers of their First Amendment free speech rights.

Despite Wilentz's record of selective concern for free speech, he held in the shopping mall context that free speech must win out over private property rights. Wilentz's opinion recognizes in passing the property rights of the mall owners, but concludes that "when they [property rights] are exercised…in a way that drastically curtails the right of freedom of speech in order to avoid a relatively minimal interference with private property, the latter must yield to the former." Wilentz then lets his true colors show: "That does not mean that one is fundamentally more important than the other, although we believe it is, but rather that here the correct resolution of the conflict between these rights is self-evident."

Out of supposed respect for property rights, the court stresses the ability of malls to impose reasonable "time, place, and manner" restrictions on the activists. These blithe assurances from the court, however, give little comfort to mall owners forced to accommodate social activists while still engaging in commercial activity—especially since they fear any such restrictions they might impose could be challenged with a lawsuit that they might lose.

Such concerns are well-founded. Professor Frank Askin of Rutgers Law School, who assembled the legal team that originally sued the shopping centers, is upset with what he considers the narrowness of the ruling. He is already threatening, along with an eager team of law students and attorneys, to bring suit against shopping malls that he believes are overly restrictive in what they allow. Askin may eventually be successful in opening the malls to all kinds of expressive activity; if malls truly are the new town squares, then on what principled basis could a future court deny access to all protected forms of expression that are on display in our downtowns, including political demonstrations, panhandling, and so on? Although limited to shopping centers in New Jersey, Professor Askin hopes that ACLU chapters in New York and Connecticut will try to reopen similar challenges. "They were waiting to see what the New Jersey Supreme Court would do," he said.

When a lower court in Connecticut granted similar access to activists, the Ku Klux Klan applied to leaflet at a mall in West Hartford. Not surprisingly, a counter-demonstration quickly formed when the Klan began to pass out literature. A riot ensued that was only quelled when SWAT teams from two surrounding counties were called in to seal off the mall's entrances. In the following months, sales at the mall declined by 35 percent.

As a result of the transformation of private shopping malls into virtual public squares, mall owners must now make decisions normally reserved for government officials. The dissenting justices in the New Jersey case posed the following dilemmas mall managers will now face: "Should an animal rights group, regardless of its graphic illustrations, be permitted near a pet shop or fur salon? Should the Vietnam Veterans and SANE be permitted to conduct activities on the same day? What standards should a mall manager use when considering the graphic portrayal on a placard, when measuring the strong language in a leaflet or when evaluating the appropriateness of a costume or clothing?" Even more disturbing, the New Jersey opinion forces mall owners, in many instances, to provide a forum for views to which they strongly object, an idea absolutely repugnant to the First Amendment.

New Jersey is not the only state to grant forced access to privately owned shopping malls. California, Washington, Massachusetts, and Oregon have also forced mall owners to allow activists onto their property under various provisions of state constitutions. Only the California Supreme Court, however, has held that the free speech clause of its state constitution, like that of New Jersey, mandates access to private malls.

California malls have also faced unwanted entry by Planned Parenthood groups passing out condoms in honor of Valentine's Day and pro-life groups that have distributed pictures of aborted fetuses to shocked customers. Some California malls have tried to place regulations on the content and manner of these types of displays (thereby raising another host of constitutional issues), but that has not stopped groups such as Queer Nation from being a persistent nuisance at Sunvalley Shopping Center. On a Saturday in 1990, a group of over 70 Queer Nation activists overran the mall, many dressed in drag, and passed out condoms to teenagers. Before leaving, the group plastered stickers proclaiming "Promote Lesbianism" and "Queers Bash Back" throughout the mall.

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 is little 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.

Scott G. Bullock is an attorney at the Institute for Justice, a public interest law center in Washington, D.C.