Are malls modern-day village greens?

Friday, May 15, 1998

Shopping malls aren’t just for shopping anymore. Senior citizens stay fit walking their lengths in the early morning hours. The Girl Scouts sell cookies there, and charities raise money. For many communities, malls are the equivalent of Main Street. That’s why, some argue, the public should be able to protest at them, despite their private ownership.

“The Mall of New Hampshire is a center for culture, a center for recreation and at times, a center for political activity,” said Arnie Alpert of Canterbury, who was arrested at the Mall of New Hampshire in Manchester last month after protesting Third World worker exploitation. “The malls are taking a quasi-public role in our culture, and therefore free speech and protection of the press apply.”

Several states, including New Jersey and Alaska, agree. They have allowed people to hand out leaflets expressing political views at malls, much as someone can in downtown Concord. But most states allow mall owners to call the shots when they believe something could negatively affect their business.

“I do agree that the mall of today is comparable to the Main Street of yesterday,” said Carole Miner Schuman, senior vice president for Wellspark Group, the managing agent for the Mall of New Hampshire. “But that doesn’t translate into the mall becoming a political forum.”

Arraigned last week in Manchester District Court, Alpert and seven others will ask the court to dismiss the charges on grounds they have a right to demonstrate in such a quasi-public place. It’s not clear what New Hampshire courts will decide. The state has a strong tradition of upholding property rights but also of protecting civil liberties more than the federal constitution does.

“If they allow demonstrations to take place, they may create a situation where people don’t want to come to the mall because they don’t want to be harassed by demonstrators,” Franklin Pierce Law Center Professor Richard Hesse said. “On the other hand, a place like the Mall of New Hampshire has public events that are unrelated to shopping.”

Alpert had asked to protest alleged Nike sweat shop abuses outside Footlocker, one of the largest sellers of Nike gear in North America. The mall’s general manager told him no.

After undergoing nonviolent civil disobedience training, Alpert’s group of roughly 25 people distributed leaflets there anyway on April 18. Eight were arrested after they refused to stop.

“We decided it was important to challenge the mall’s prohibition against free speech,” Alpert said. “A demonstration is most effective outside the store where the product is sold.”

At one time, the U.S. Supreme Court likened malls to public property, an idea stemming from a bygone era of company mill towns where the company owned the stores, the houses and just about anything the workers used, Hesse said. The malls were somewhat town-like, and the free speech guarantee under the federal Bill of Rights applied, the court said.

But in 1972, the court decided mall owners didn’t have to allow people on their property for reasons other than shopping.

Still, some states decided their state constitutions permitted it. The California Supreme Court decided there are no villages anymore and in some places, like the Silicon Valley, there never were. People, the California court said, had a First Amendment right to demonstrate in shopping centers.

“It said ‘This is the modern version of the public square,’ ” Hesse said.

A total of six states hold the mall is the functional equivalent of Main Street. New Jersey’s Supreme Court decided in 1994 the free speech provisions of the state constitution were broader than the federal constitution. It ruled shopping centers must allow people to distribute leaflets on societal conditions.

“No matter how it is analyzed, the right claimed by the property owners is minimal compared to that which their claim would significantly diminish,” the court wrote. “We do not interfere lightly with property rights, but when they are exercised, as in this case, in a way that drastically curtails the right of freedom of speech in order to avoid a relatively minimal interference with private property, the latter must yield to the former.”

The Mall of New Hampshire doesn’t agree.

“The U.S. Supreme Court has ruled that privately-owned shopping centers are not required to allow individuals onto their property for purposes other than shopping,” Schuman said. “Consistent with that ruling and our goal to provide our patrons with an enjoyable shopping experience, the mall is open to all persons whose purpose is compatible with the commercial nature of the center.”

That argument was reinforced in April when a Minnesota Court of Appeals overturned a lower court’s decision that the state constitution protected free speech at the $700 million Mall of America, which was funded in part with public money. The court argued many privately owned developments had received public money. And it said the U.S. Supreme Court held the federal free speech guarantee doesn’t apply to privately-owned malls.

For Alpert’s group to successfully argue its case, it will have to show the Mall of New Hampshire has displaced the public green, Concord attorney Joshua Gordon said.

The group would have a harder time winning that argument with the Steeplegate Mall in Concord, which is just a couple miles from the State House green. Manchester’s mall doesn’t have such a nearby forum.

“A lot goes on to show malls have become public forums,” Gordon said. “They host all kinds of things. It’s the ability to show those things that enables state courts to mandate that free speech has to exist in malls.”

Carrie Sturrock can be reached at 224-5301, ext. 309, or by e-mail at
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