Georgia high court backs mall’s no-solicitation policy

Thursday, July 8, 1999

A privately owned mall can prohibit soliciting and leafleting in its common areas, the Georgia Supreme Court has ruled.

Mark Cahill sued Town Center Mall in Cobb County, Ga., after mall security guards asked him to leave for distributing religious literature to mall patrons and leaving leaflets in the common areas and bathrooms. Security guards said they noticed Cahill “witnessing” in the mall's food court.

Cahill describes witnessing as “individual, God-commanded efforts” to educate people about Jesus Christ through conversation and distribution of religious materials.

Cahill sued in state court, alleging that the mall's no-solicitation policy violated the free-speech provision of the Georgia Constitution. A state judge ruled against Cahill last November, finding that his free-speech claim failed because the mall was private property.

In its 1972 decision Lloyd Corp. v. Tanner, the U.S. Supreme Court ruled that a privately owned shopping mall does not violate the First Amendment of the U.S. Constitution by refusing to allow solicitation. The court noted that a contrary result would result in “an unwarranted infringement of property rights.”

However, the high court ruled in its 1980 decision Pruneyard Shopping Ctr. v. Robins that a state could interpret its own state constitution free-speech provision as protecting expression even at privately owned malls. The decision in Lloyd doesn't preclude a state from adopting “in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution,” the court wrote.

Most states have declined to read their constitutions as broadly as California did with respect to free-speech rights in privately owned malls.

On July 6, the Georgia Supreme Court in Cahill v. Cobb Place Associates, L.P. declined to extend free-speech protection to individuals soliciting at private malls. The court relied on its 1990 decision in Citizens for Ethical Government v. Gwinnett Place Assoc., in which it determined that the Georgia Constitution does not create “a constitutional right of access to private property.”

“We are unwilling to depart from our ruling in Citizens for Ethical Government in order to reach the result preferred by Cahill,” the court wrote.

Mark Kelley, attorney for the mall, said: “The Town Center at Cobb felt entitled to exclude Mr. Cahill from its property and we are happy that that right was upheld.”

A call placed to Cahill's attorney was not returned.