Stephen Downs and son Roger caused a stir last month when they were arrested for wearing anti-war T-shirts in Pyramid Management Group's Crossgates Mall near Albany, N.Y. The elder Downs was charged with trespassing after he refused to remove his shirt at a security guard's request. When news of the arrest got out, 100 T-shirt-clad protestors marched in the mall.
Police reports, citing witnesses, indicated the senior Downs' arrest was the result of a squabble with security guards, rather than just a benign case of self-expression. Either way, the episode brings fresh attention to the issue of First Amendment rights at malls and shopping centers. The war with Iraq makes the debate especially significant today.
As private spaces that give the appearance of continuing the tradition of village greens and city streets, shopping centers are contested terrain for those who choose to publicly express themselves. As long as the war in Iraq continues, and even after, public debate will undoubtedly find a place in such venues. So, on top of increasing security against terrorist acts in America's malls, owners and managers must be prepared to deal with protesters too.
“I have clients that are much more apprehensive and want to take steps to protect themselves,” says Suzanne Ilene Schiller, partner at Philadelphia-based law firm Spector, Gadon & Rosen, which frequently represents mall owners.
The main guideline managers operate under is that they can refuse to serve whomever they choose, but can't descriminate on grounds of race, gender or ethnicity. “Our shopping centers are private property and exist to provide shoppers a pleasant environment in which to shop,” says Karen MacDonald, communications director for Taubman Centers. Taubman “generally does not permit non-retail related activities to take place.”
As for more specific interpretations, laws vary from state to state. An operator that runs centers in multiple states has to be especially mindful. Even regional players have to “really make sure they know the law,” says Schiller. For example, New Jersey allows limited access for public use while Pennsylvania does not. Adds MacDonald: “If a person or group requests permission to have access to the shopping center, we do not permit access unless required by state law.”
State laws are constantly evolving. Take New York. For now, the state does not mandate access, but two bills, introduced in the state legislature in February, could change that. The bills follow the lead of the landmark 1980 case of Pruneyard Shopping Center v. Robins, in which the U.S. Supreme Court held that states could require shopping centers to allow First Amendment activities under reasonable conditions.
The bottom line is that operators must stay informed. “There's no federal guarantee that protects protestors, but each mall operator should look at the law for its state,” says Kevin Saunders, a First Amendment expert at Michigan State University, Detroit College of Law. On top of knowing the law, malls must follow their own policies. Enforcement should be the same regardless of the content of the speech.
On an ironic note, the Downs actually bought their shirts from a Crossgates vendor, raising the question: If it's OK to buy a statement-making garment on the premises, shouldn't it be OK to wear it there? Pyramid wouldn't comment on the case, but has since dropped charges.