[Peace-discuss] Civil liberties and the mall

[C. G. Estabrook]

[Here's a brief and rather glancing account of current legal practice
about free speech in malls.  It seems to me to reinforce the view that it
will have to be established by political entities' insisting upon it --
for example, in development deals -- and not by relying on the courts to
"grant" it.  Who after all gave the courts the power to do that, or not?  
The situation in Illinois seems particularly bad: "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)" <http://www.davelippman.com/LawoftheMall.html>. --CGE]

	Why Can Shopping Malls Limit Free Speech?
	By Dahlia Lithwick
	Posted Monday, March 10, 2003

Last week, 61-year-old Stephen Downs was arrested for refusing to remove a
T-shirt with the words "Peace on Earth" and "Give Peace a Chance" in a
shopping mall in Albany, N.Y. Why don't citizens have the same free speech
rights in shopping centers that they do on city streets and parks?

Because malls are private property, and our constitutional rights are
triggered only when the government (and not a private citizen) tries to
limit our freedoms. As malls expand to include outdoor boulevards, movie
theaters, and coffee houses, many contend that we should have free
expression rights in these "private forums." Their argument is that malls
play the same role city streets and town squares once played in our
democracy.

The first cases asserting free speech rights in privately owned shopping
centers were successful. In the 1946 case of Marsh v. Alabama, the Supreme
Court held that the business district of a privately owned "company town"
was the same as a public street for First Amendment purposes, finding that
"the more an owner, for his advantage, opens up his property for use by
the public in general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it." A 1968 case --
Amalgamated Food Employees Union v. Logan Valley Plaza -- held that a
privately owned mall was the "functional equivalent" of the business
district in Marsh.

But realizing they had overreached in the early cases, and sensitive to
what they had done to private property rights, the Supremes reversed
course in Hudgens v. NLRB, a 1976 case holding that the First Amendment
guarantees no free speech rights in private shopping centers. And in an
important 1980 case, Pruneyard v. Robins, the court upheld the general
notion that citizens have no First Amendment rights to express themselves
in privately owned shopping centers while still agreeing that a group of
California students had the right to hand out leaflets and collect
signatures in a private California mall.

The magic bullet in Pruneyard? The high court found that state
constitutions may confer upon citizens broader speech rights than the
federal Constitution, and the broadly worded California Constitution gave
citizens the right to speak freely, even in private malls. The court
dismissed the shopping center's claims that such a rule infringed on its
free speech rights, by forcing it to tolerate unwanted speech on private
property, and rejected the argument that forcing them to open up to public
debate constituted an unconstitutional "taking" of private property.

Pruneyard was an invitation from the high court to the states to amend and
interpret their own state constitutions to permit free speech in private
forums if they so desired. But 23 years later, only six states have joined
California in recognizing a state constitutional right to speak and
assemble on private property: New Jersey, Colorado, Oregon, Massachusetts,
Washington, and Pennsylvania (and several of them have waffled after doing
so). Even the states conferring these broader speech rights do so only on
two types of private property -- shopping malls and non-public
universities -- and the only speech protected there is political speech.

The New York Court of Appeals expressly refused to apply New York's
constitutional protections to free speech in shopping malls, which is why
Stephen Downs was hauled away for suggesting that we give peace a chance.
The charges were later dropped.

Dahlia Lithwick is a Slate senior editor.

Article URL: http://slate.msn.com/id/2079885/