[Peace-discuss] getting malled in america

Fri Mar 7 14:46:54 CST 2003

I originally pulled this material together for the Carl campaign last 
spring, when we were in the throes of petitioning and needed to figure out 
where we could do so unhindered. (Quite a few signatures did in fact get 
gathered in grocery store parking lots, bars, etc., but gatherers either 
got management's permission beforehand or were poised to move on if 
challenged.) I don't think anyone tried it at Marketplace. At any rate, 
here is the most relevant info this non-lawyer could cobble together.

It's a sorry fact of US life that a great many of our congregating spaces 
have been privatized. And just like when other essential public services 
get swallowed up by corporations, constitutional guarantees of assembly, 
speech, etc. get trounced when the spot you're standing on is under deed.

jb

>Date: Thu, 23 May 2002 14:48:11 -0500
>Subject: petitioning on private property - more detail than most would 
>want ;-)
>
>Since questions keep popping up about petitioning on private property, I 
>did a little web searching this morning and came up with more details than 
>most folks would want to know. The source for the following is a 
>journalists' association website, the Reporters Committee for Freedom of 
>the Press (www.rcfp.org/places/accesstoprivateproperty.html).
>
>The upshot seems to be that there's no federal right to petition on 
>private property, and Illinois has some of the worse state court findings. 
>No surprises here. Petitioning on private property, e.g. in stores and 
>store parking lots, isn't something we'd necessarily want to avoid, but we 
>need to realize that if we're asked to leave by anyone in management, we 
>have no legal right to be there, judging from this information at least.
>
>Note that public property is quite another matter - according to other 
>pages on the same site, there are two varieties: public forums, and 
>non-public-forum public property (e.g. prisons and schools, where 
>officials have the right to claim that presence interferes with the main 
>purpose of the building). Public forums, e.g. streets and sidewalks, are 
>the most open. The site has this to say about those:
>
>>Although governments generally may
>>not limit or deny access to public
>>forums, they may impose reasonable
>>"time, place and manner" restrictions
>>on expressive activity on such
>>property. To comply with the First
>>Amendment, such restrictions must
>>satisfy a three-part test: they must be
>>content neutral, narrowly tailored to serve
>>a significant government interest, and
>>must leave open alternative channels of
>>communication.
>(source: http://www.rcfp.org/places/accesstopublicproperty.html)
>
>Info about non-public-forum public property is at:
>http://www.rcfp.org/places/notallpublicpropertyisapublicforum.html
>
>
>Here's the private property info from the site:
>
>>   In 1968, the U.S. Supreme Court held that a shopping mall was the modern
>>   equivalent of main street, the "normal municipal business district." 
>> It concluded
>>   that the landowner could not "limit the use of that property by 
>> members of the
>>   public in a manner that would not be permissible were the property 
>> owned by a
>>   municipality." (Amalgamated Foods Employees Union Local 590 v. Logan 
>> Valley
>>   Plaza)
>>
>>   But in a subsequent decision the Court retreated from this position, 
>> stating that
>>   property does not "lose its private character merely because the 
>> public is generally
>>   invited to use it for designated purposes." (Lloyd Corp. v. Tanner)
>>
>>   Then, in 1980, the U.S. Supreme Court essentially left the question of 
>> access to
>>   malls up to the states, holding that the federal Constitution affords 
>> no general right
>>   to free speech in privately-owned shopping centers. (PruneYard 
>> Shopping Center v.
>>   Robins)
>>
>>   However, state constitutions may be interpreted to provide greater 
>> protection for
>>   expression, and therefore newsgathering, than the U.S. Constitution. 
>> States may
>>   therefore afford the public greater protection for expression in a 
>> shopping mall, even
>>   at the expense of the owner's property interest. Since the high 
>> court's decision in
>>   PruneYard, several state supreme and appellate courts have ruled on 
>> the issue of
>>   whether their state constitutions give people the right to enter 
>> shopping malls for
>>   noncommercial purposes such as political campaigning or gathering 
>> signatures for
>>   an initiative petition.
>>
>>   Courts that have found constitutional protection for these activities 
>> have given a
>>   variety of reasons for their decisions.
>>
>>   For example, the Colorado Supreme Court found that a town's financial 
>> support of a
>>   shopping mall, and the range of non-shopping activities allowed there, 
>> made the
>>   center the equivalent of a public forum. This finding was sufficient 
>> to trigger the
>>   state constitution's free speech clause, which prevented the mall 
>> owners from
>>   excluding citizens involved in nonviolent political speech. Courts 
>> have also ruled
>>   that if a shopping mall allows some political opinions to be 
>> expressed, it must
>>   allow speakers of all types onto the premises.
>>
>>   Almost all courts that have found a right of access to shopping malls 
>> have also
>>   said that center owners may promulgate reasonable time, place and manner
>>   regulations on noncommercial speech activities. Under the three-part test
>>   discussed earlier, these rules must be content neutral, narrowly 
>> tailored to serve a
>>   significant state interest and leave open ample channels of communication.
>>
>>   Other state courts have given citizens a right under their 
>> constitutions' ballot
>>   initiative and referendum clauses to enter shopping malls to gather 
>> signatures for
>>   petitions to put various issues on the ballot. At least one court has 
>> ruled this to be
>>   a limited right of access that does not give people the right to 
>> exercise other free
>>   speech rights in a shopping mall.
>>
>>   State appellate courts that have not found a right of access have 
>> usually done so
>>   on the ground that the state constitution does not confer greater free 
>> expression
>>   rights than the First Amendment.
>>
>>   Listed below are the specific holdings for each of the 19 states that have
>>   considered the question as of October 1997.
>>
>>   ...........
>>
>>   Illinois: The Illinois Supreme Court, in a case decided prior to 
>> PruneYard Shopping
>>   Center, rejected the First Amendment claims of a group who entered a 
>> shopping
>>   center to distribute leaflets condemning racial tensions in that town. 
>> The court
>>   followed the U.S. Supreme Court's ruling in Lloyd Corp. v. Tanner, 
>> which rejected
>>   the First Amendment claims of persons barred from distributing 
>> anti-war literature
>>   in a shopping mall. (People v. Sterling)
>>
>>   More recently, the Illinois Supreme Court ruled that a food store that 
>> allowed
>>   members of the general public access to its property for non-commercial
>>   expressive conduct could exclude persons collecting signatures on a 
>> political
>>   nominating petition. The high court held that the free speech 
>> provision of the Illinois
>>   Constitution does not apply to actions of private individuals, but 
>> only to actions by
>>   the state. (People v. Diguida)
>>
>>............