Mall customers are free to shop, but are they free to speak?

Thursday, February 12, 1998

On the eve of the 21st century, shopping malls have substantially displaced town squares and downtown business districts as the epicenters of public activity.

This shift in consumer congregation from the old town square to multimillion dollar megastore complexes raises some interesting questions under classic First Amendment jurisprudence.

First, the First Amendment only safeguards individuals’ free-speech rights from governmental interference. “Congress shall make no law … abridging the freedom of speech” does not translate into “a private mall owner shall make no law restricting speech.”

Secondly, individuals have more freedom to speak on government property that has been traditionally an open forum for expression.

Shopping malls do not fit neatly into this constitutional paradigm. That’s because most of these centers are privately owned and private property owners have a right to control their property.

Furthermore, the U.S. Supreme Court has stated on several occasions that “the essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.”

One case in Minnesota could fundamentally alter this conception. The case—State v. Wicklund—arose as a simple trespassing case.

Animal-rights protesters demonstrated in front of a Macy’s store in the Mall of America, the largest mall in the country. The police arrested four people who refused to quit protesting and charged them with criminal trespassing.

The protesters’ attorney argued the charges violate his clients’ First Amendment rights to free speech. The mall owners counter that property rights trump the disruptive and financially harmful activities of these unwelcome malcontents.

The protesters managed to convince a trial judge that the First Amendment applied at Bloomington’s Mall of America, a self-described “city within a city,” in part because 15 percent of the mall was publicly funded.

Mall owners appealed the decision and now the Minnesota Court of Appeals must decide whether the public subsidy transforms a mainly private megamall into public property for First Amendment analysis.

Given the sheer size of the Mall of America and the taxpayer money involved, the case could have limited impact on free speech at malls across the country. Other courts could distinguish the Mall of America situation as an anomaly—a monstrous mall partially built with public money.

However, the appeals court could decide the case on a different rationale that could have a far greater impact. The Minnesota court could determine the case based on an interpretation of the state constitution.

In 1980, the U.S. Supreme Court ruled in PruneYard Shopping Center v. Robins that California could interpret its state constitution so that free-expression rights are protected even on private property.

Referred to as the Magna Carta of state constitutional theory, the PruneYard case stands for the principle that each state can determine for itself whether its constitution only protects free-expression rights from governmental interference or provides much broader freedoms.

Both California and New Jersey have read into their state constitutions affirmative free-speech rights for their citizens that cannot be restricted by governmental actors and by private property owners who open their property for public use.

No one can deny that mall owners retain the rights to enact reasonable time, place and manner restrictions to ensure that expressive activity will minimally interfere with the malls’ commercial functions.

But courts should also not deny that modern-day shopping malls function like public places and serve as the new American Main Streets. As the New Jersey Supreme Court wrote a few years ago: “these centers can no more avoid speech than a playground [can] avoid children, a library its readers, or a park its strollers.”

Society must respect the property rights of mall owners, but as Justice Thurgood Marshall said 25 years ago of the clash between property and free speech rights: “When the competing interests are fairly weighed, the balance can only be struck in favor of speech.”