Freedom Of Speech And Private Property

.. maller in size than a regional. The majority of the properties denied access to the organizations. However, four did grant permission and the organizations distributed their leaflets at two of them. The coalition sued for access to the malls in order to distribute leaflets. Although the war was over by the time this case reached the New Jersey Supreme Court, the Court ruled in favor of the coalition.

The Court accepted that regional shopping centers had taken the place of downtown business districts. It didnt accept the shopping centers argument that distributing leaflets was contrary to its main purpose of encouraging as many people as possible to come to the mall and shop. The Court sighted many instances where the malls allowed and promoted activities that had nothing to do with shopping, such as childrens ID programs, Santa Claus and Easter Bunny visits and supplying community booths for the public to use on an ongoing basis and special community days throughout the year. As with the first case study, the Court ruled that the coalitions free speech was more important than the mall owners property rights and that the malls interests were taken into account by allowing the mall to govern when, where and how leaflets were distributed. Additionally, the coalitions freedom of speech was sufficiently narrow in scope to further protect the property owners rights. The coalition was only allowed to distribute leaflets.

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The coalition could not hound customers, nor could it conduct speeches, demonstrations or parades. It could only speak with patrons in a normal voice and could not use megaphones, bullhorns or even a soapbox. Finally, it was determined that the coalition could not solicit any donations from customers since that action would directly compete with the malls tenants. The New Jersey Supreme Court had to answer three questions when ruling on this case: (1) the nature, purpose and primary use of the malls; (2) the extent and nature of the publics invitation to use the malls property; and (3) the purpose of the coalitions activity in relation to both the public and private use of the property. In this case, the Court combined questions one and two because they thought they were so interwoven. The primary purpose of the mall was to make a profit by attracting as many people as possible into the mall. Once in the mall, it was believed that a large number of people would become shoppers and make a purchase. With that in mind, malls advertised to everyone with promotions that many times had nothing to do with shopping.

All were invited to come to the mall. As a result of this open door policy, coupled with the malls ability to strictly regulate the coalitions activities, which the Court took special note of, the Court reasoned that both the malls and coalitions activities could coexist without significantly harming each other. Impact How do the decisions from these cases affect the shopping center industry? Centers that are located in a state whose constitution offers the freedom of speech more protection than the Federal Constitution (California, New Jersey, Oregon, Washington, Colorado and Massachusetts) have a slightly heavier burden to carry than those in other states. A shopping center manager must now formulate standard operating procedures that state where all “demonstrations” will take place, when they can be held and how they are to be held in order to minimize disruption to customers and merchants. Although the courts have given shopping centers great latitude to regulate these “demonstrations”, they have provided a whole new avenue of litigation.

Each section of a malls standard operating procedures is questionable and, therefore, litigious. Why was one area chosen over another? How come a higher customer trafficked area couldnt be used? Why doesnt the mall allow someone to demonstrate every day and whats wrong with having two opposing groups demonstrating at the same time? Is it too burdensome to require organizations to provide insurance as a precondition to using mall property? If not, than what dollar limit of insurance is sufficient to protect the malls best interest? Answers to these questions must be applied to all demonstrations uniformly and without bias. Even when a shopping center isnt required by law to allow demonstrations, they still should have a written plan to deal with demonstrators requests. During the mid-1990s it was common practice for a malls “community access policy” to be as follows: no non-retail related activities on mall property. This meant no Boy or Girl Scouts and no Salvation Army. It also meant a lot of very unhappy and influential organizations.

As a mall manager who had to enforce such a policy, explaining the policy in the following way soothed many people over. If the mall allows the Boy Scouts to use mall property, than it must also allow the Ku Klux Klan in or face a discrimination lawsuit by them. Rather than face a possible lawsuit, everyone would be denied the use of the mall, except for shoppers. With the proliferation of e-commerce, these access policies have been greatly eased. It is still important, however, that each mall have a standardized method of accepting and scheduling non-shopping activities within the mall. At Six Flags Mall for example, there is a community room that is available to all organizations for a nominal clean-up fee of $20.00 per use.

They use a standardized reservation form, which allocates the room on a first-come, first-served basis. The room is away from the main corridors of the mall and has its own, separate entrance. The only rules governing the room are no outside food or drink is allowed and no smoking is allowed. At Festival Marketplace Mall, there is a center court stage that is available free of charge to most performing arts organizations, school bands, dance schools, choirs, etc. There is a standardized form that applicants must fill out to book the stage.

A certificate of insurance is required, or it can be waived if all participants sign a waiver and a hold harmless agreement. Each group is required to submit a sample of their performance. This sample is used to determine if the group is appropriate for the stage. Some groups have been denied use of the stage for the following reasons: too many members to fit on the stage, proposed music was too loud, or the act was not suitable for a family oriented business. Although each one of these denials are grounds for litigation, each of them has a solid, documented reason for being invoked. Future The shopping center industry must be prepared for new litigation since the realm of freedom of speech is always a slippery slope.

As outlined above, requests from demonstrators are a major area for litigation. Less than twenty-five states have decided if malls must allow demonstrators access to their property, which includes the states named throughout this paper. What waits to be seen is how the remaining states will rule when the question of free speech versus property owners rights is raised. It also waits to be seen how the various courts will rule on the “reasonable regulations” malls can impose on demonstrators. It seems foolhardy for a court to set down a judgment about these regulations that could affect all malls in one state when each mall is different. The same guidelines usually dont work for each location.

Conclusion The shopping center industry is left waiting for the next lawsuit to be filed regarding freedom of speech. The outcome of the suit will depend on the states constitution where the suit is filed. If the shopping center loses and every mall in that state is forced to allow demonstrations, I would guarantee an appeal to the U.S. Supreme Court. Will the Supreme Court hear the case? Its doubtful, based on previous court decisions. Potential new litigation to come from California, New Jersey, Washington, Oregon, Colorado and Massachusetts might raise the question of whether a shopping center needs to subsidize demonstrations on mall property. Since the insurance policy the mall requires primarily benefits the mall, shouldnt the mall pay for it and not the demonstrators? Might the mall be required to pay for other items that the demonstrators cant afford, like signs? As a certified shopping center manager with over ten years of experience and a member of the International Council of Shopping Centers, I am troubled by the rising legal costs of doing business. (Cesare 1) The general public is invited into shopping centers to spend their money on food, apparel and/or entertainment.

Newspapers are not forced to print editorials, shopping centers should not be forced to allow someone access to its valuable commodity, customers, without some type of reimbursement Bibliography National Research Bureau, Shopping Center Directory 1994, Eastern Volume (1993) Rehnquist, J. “Pruneyard Shopping Center V. Robins, 447 U.S. 74 (1980)” United States Supreme Court 09 June 1980. 05 April 2000 Wilentz, C.J.

“New Jersey Coalition Against War in the Middle East, et al. V. J.M.B. Realty Corporation, Etc. et al.

(A-124/125-93)” New Jersey Supreme Court 20 December 1994. 05 April 2000 “Amendment I.” First Amendment Cyber-Tribune 03 January 1997. 07 April 2000 “Judge rejects motion to dismiss trespassing charges in NH access case.” Shopping Centers Today 23 December 1998. 07 April 2000 “Mall of America wins key access ruling.” Shopping Centers Today 12 March 1999. 05 April 2000.


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