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Freedom of Speech in the Mall

A recent ruling by the New Jersey Supreme Court raises the issue of freedom of speech and assembly for review by mall managers, marketing directors, and security chiefs.

State supreme courts periodically review cases dealing with questions about the rights of free speech and assembly by citizen groups in malls. Their decisions often make it necessary to review the policies followed by malls within certain states before considering requests from citizen groups who want to distribute literature or demonstrate on mall property.

The New Jersey Supreme Court handed down such a decision in June of this year, in the case of Green Party of New Jersey v. Hartz Mountain Industries Inc. The decision affirmed a 1994 case called New Jersey Coalition Against War In The Middle East v. J.M.B. Realty, which held that New Jersey shopping centers could not bar individuals and groups seeking to engage in what has come to be called "non-commercial expressive activity."

Legal observers say that this year's Green Party decision offers mall owners guidance on how New Jersey courts will judge questions related to this issue in the future.

Court decisions concerning non-commercial expressive activity date back to 1980, when the U.S. Supreme Court set the boundaries for what has become a continuing debate. In the case of Robins v. Pruneyard Shopping Center, the Supreme Court said that first amendment free speech rights guaranteed under the U.S. Constitution do not guarantee individuals the right of access to private property for the purpose of keeping people informed through traditional free speech activities.

In other words, the U.S. Constitution protects free speech on public property, but not private property.

If that had been the end of it, mall owners and managers would have found themselves with the authority to prevent citizens from engaging in free speech activities on mall property.

But under the nation's federal system of government, each state has ratified its own constitution, and the U.S. Supreme Court noted in the Pruneyard decision that individual state constitutions may protect freedom of speech on private mall property.

Since the Pruneyard decision, a number of state supreme courts have reviewed this issue and established policies defining how malls in their states must deal with non-commercial expressive activity on mall property.

California And New Jersey Protect Broad Access Rights Two states, California and New Jersey, have established rules that favor broad access to individuals and groups seeking to engage in free speech activities in shopping malls. "Courts in these two states have said that a mall is not like a house, a store or even a strip center," says Suzanne Ilene Schiller, an attorney with Spector Gadon & Rosen in Philadelphia, Pa., who consults with shopping centers on this issue. "Instead, a regional shopping center is the functional equivalent of a city street, and the free speech rights that people enjoy in a downtown area - - to leaflet, for example, apply to shopping centers."

In accepting this view, California and New Jersey have rejected opposing arguments, contending that a shopping center is private property specifically designed to attract patrons and that free speech assemblies will hinder the achievement of that goal.

California marched down this road first and has generally decided cases in favor of broad access rights since 1980.

A 1987 California decision led directly to the New Jersey decision in the Green Party case handed down this year.

The California case, H-CHH Associates v. Citizens For Representative Government, dealt with a mall owner's effort to require groups seeking a free speech forum to obtain insurance that would protect the mall against any mishaps. H-CHH Associates had required Citizens For Representative Government to acquire $1 million in such insurance.

The citizen's group could not afford an expensive insurance policy and sued on the grounds that requiring such insurance created an unlawful barrier against expressive activity. Access rights carried the day.

"In this case, the California Supreme Court said that malls must establish and follow policies before requiring groups to buy insurance," Schiller says. "Mall management, for example, might say that insurance is required if an organization has been involved in activity that has caused damage before. In this ruling, the Court established a checklist of conditions that must exist before a California center can require insurance."

Without regard to the guidance set out in the 1987 California case, a number of New Jersey shopping center owners have in recent years required groups seeking access to purchase insurance. The Green Party case challenged that effort. Appeals eventually took the case to the state Supreme Court.

"The New Jersey Supreme Court said no to the centers," Schiller says. "The Court said center owners must be reasonable and told them to look to the history of case law in California discussing what is reasonable in the context of insurance.

"What the Green Party case ultimately tells owners of centers in New Jersey is that there is a 20 year history of case law in California. Don't ignore it. What goes in California will probably go in New Jersey."

Four States Provide Limited Access Rights However, most state Supreme Courts have not followed the examples of California and New Jersey.

Four states, for example, have adopted positions in the middle.

Three of these states, Massachusetts, Oregon, and Washington, have identified certain types of speech entitled to more protection than other types. "These states have said that speech related to registering voters and obtaining signatures to get a candidate or an issue on the ballot have protection," Schiller says. "On the other hand, although groups seeking to pass out flyers related to political issues such as gun control or abortion rights do have free speech rights, those rights do not rise to the level of overcoming the private property rights of a shopping center owner."

A fourth state, Colorado, has found a different sort of middle ground. "Some centers in Colorado have been developed in part with public money from redevelopment authorities," Schiller says. "Colorado Courts have made fine distinctions in cases concerning those centers, sometimes, but not always, finding access rights where public money has been used."

According to Schiller, the remaining states fall into two broad categories.

Twenty-some states have examined the issue and decided that their constitutions do no protect public access rights on private property.

"The balance of the states has either not looked at the issue at all or have only looked at it in the lower or trial courts," Schiller says.

How To Set Access Policies For Mall Portfolios That Cross State Lines Schiller recommends that owners, with centers in many states, set access policies for individual states rather than developing a uniform code. The reason is that a uniform policy would probably follow the rules of the least restrictive state in which an owner operates and allow access to malls in states where it is possible to refuse. Such an approach can lead to problems.

Suppose a disruptive group applies for space in a mall with liberal access rules in a restrictive state. Management may want to bar the group. But that could lead to a court challenge in which the group asks for access on the basis of access rights granted to other groups, such as the Boy Scouts or the Salvation Army.

"Picking and choosing can create problems," Schiller says.

In developing access policies with her clients, Schiller meets with all interested parties, including in-house legal counsel, regional and individual mall managers, marketing people and security people.

"We establish what areas in the center may be used for promotional activities," she says. "Then we formulate rules that everyone is comfortable with."

Schiller emphasizes that malls in states that grant broad access rights may certainly establish rules related to access. "Even states like California and New Jersey offer options," she says. "If you go to a center in California and ask for a copy of the rules and guidelines, you might get a 30 page document specifying where tables may be placed; how many people can be there; what time a group may occupy its space; dress code requirements and so on. So extensive sets of rules can be developed."

What happens if a group challenges these rules? "This happened in California in 1997," Schiller says. "The case involved the Union of Needle Trades Industrial and Textile Employees. The Court looked at rules and guidelines set by five malls in California and decided that those rules were acceptable."

On the other hand, Schiller cautions about assuming that rulings about access apply to union activity. "Union activity is governed under federal labor law and is very different," she says.

Implementing The Rules Once the interested parties have agreed on a set of rules, Schiller recommends a series of meetings aimed at establishing how to apply the rules. These discussions cover the development of applications for groups - addressing what information is to be required and on what basis will one application be approved and another rejected.

"It's also important to meet with the security people who must enforce the rules governing activities in the mall," Schiller says. "What kinds of procedures will you follow? If someone distributes flyers outside of the designated area, will you throw the person out or provide a warning?"

The more deeply you consider these issues, the more questions arise. What if a group ignores a warning? Will you have people arrested for trespassing or simply ask them to leave?

Will you photograph people regularly? Will you videotape certain groups?

Under what conditions will you call in local law enforcement? What policy does local law enforcement have about taking action in these cases? Do their policies reflect the most current law? If not, your attorney might meet with the authorities and discuss recent changes.

And that's the real point. State laws governing non-commercial expressive activity in malls will continue to evolve. Mall owners, legal counsel, managers, marketing managers and security directors must regularly review the most current rulings in the states where they do business to make sure that center policies continue to reflect the law.

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