SPEEK FREE FREEIn contrast, courts in California, Massachusetts, New Jersey, and Oregon have held that their state constitutions provide broader protection of free speech in shopping centers than the U.S. Many court decisions in these states also have noted that state funding of private development does not constitute sufficient state involvement to make the state constitution protections of free speech applicable.įor example, the Minnesota Supreme Court concluded earlier this year that neither the presence of public financing alone nor public financing coupled with an invitation to the public to enter private property is sufficient to transform private property into public property for purposes of extending free-speech protection under the state’s constitution in Minnesota v. In its decision, the court focused on its observation that, unlike a town or public center, a mall "concerns itself with only one facet of its patrons’ lives - how they spend their money." The majority of courts - including those in Arizona, Georgia, New York, Pennsylvania, and South Carolina - have interpreted the free-speech provisions of their state constitutions as providing the same but not broader protection than the First Amendment provides.įor example, the Arizona Court of Appeals held that the free-speech and initiative provisions of the Arizona Constitution did not protect the solicitation of signatures in privately owned malls for the recall of the then-governor in Fiesta Mall Venture v. This additional protection varies by state, type of speech, and characteristics of the private property. Constitution does not protect free speech in shopping centers, state constitutions may provide more protective standards. Subsequent cases confirmed that the First Amendment does not protect free speech in privately owned malls. It held that private property generally does not lose its private character merely because the public is invited to use it for designated purposes. It found that, unlike the company-owned town in Marsh, the shopping center in Lloyd did not involve a private party assuming municipal functions or powers. In no sense are any parts of the shopping center dedicated to the public for general purposes or the occupants of the plaza exercising official powers." He also noted that although the public was invited to the mall, the invitation only was to shop for products being sold.įour years later the Supreme Court ended the argument that a shopping mall is the functional equivalent of a company town in Lloyd Corp. In his dissent to the majority decision in Amalgamated, Justice Byron White had noted that the mall "is not a town but only a collection of stores. Noting that a mall was the functional equivalent of the privately owned business block in Marsh, the court held that peaceful picketing that targeted a single store and was done in the privately owned parking lot adjacent to the mall had protection. The Supreme Court further expanded its decision in the 1968 case of Amalgamated Food Employees Union Local 590 v. The key difference was that the company owned the entire town and had taken over all municipal functions. Alabama, the court ruled that the town was indistinguishable from other municipalities in appearance, function, and accessibility. Supreme Court in 1946 found that free speech was protected on the streets in the business section of a company-owned town, even though the free-speech restriction was imposed by a private party rather than the government. abridging the freedom of speech." The protection provided by the Constitution applies to government action that abridges the right of free speech. Constitution provides that "Congress shall make no law. As retail property owners expand into different states, they should determine whether free speech on private property may be protected by a state’s constitution, and if so, to what degree. While the majority view says that speech is not protected on private property, some courts have held that free speech exercised in privately owned shopping centers is protected by certain state constitutions. Schuk, JD |Īcross the country, courts have weighed the right of free speech against private property rights with differing results. Legal Briefs States Speak Out on Free Speech in Mallsīy Samuel H.
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