I. Thesis Statement 1
II. Shopping Centers & Organizations
Definitions . 1-2
III. First Amendment
IV. Evolution of Shopping Centers
Regional Shopping Centers .. 2-3
V. Case Studies
Pruneyard v. Robins 4-5
NJ Coalition Against War in the Middle East v. J.M.B. Realty . 5-6
Industry Reaction 7-9
Litigation . 9
VIII. Conclusion .. 9-10
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.
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.
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 didnt 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 childrens 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 coalitions free speech was more important than the mall owners property rights and that the malls interests were taken into account by allowing the mall to govern when, where and how leaflets were distributed. Additionally, the coalitions freedom of speech was sufficiently narrow in scope to further protect the property owners 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 malls 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 publics invitation to use the malls property; and (3) the purpose of the coalitions 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 malls ability to strictly regulate the coalitions activities, which the Court took special note of, the Court reasoned that both the malls and coalitions activities could coexist without significantly harming each other.
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 malls standard operating procedures is questionable and, therefore, litigious. Why was one area chosen over another? How come a higher customer trafficked area couldnt be used? Why doesnt the mall allow someone to demonstrate every day and whats 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 malls best interest? Answers to these questions must be applied to all demonstrations uniformly and without bias.
Even when a shopping center isnt required by law to allow demonstrations, they still should have a written plan to deal with demonstrators requests. During the mid-1990s it was common practice for a malls 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.
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 dont work for each location.
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 states 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? Its 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, shouldnt the mall pay for it and not the demonstrators? Might the mall be required to pay for other items that the demonstrators cant 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