The mall's in their court

Reason, August-Sept, 1995 by Scott G. Bullock

Forcing shoppers into the public square

The right to keep unwanted intruders off our property is a cornerstone of American liberty. But not if one's property is a shopping mall.

If a recent ruling from the New Jersey Supreme Court in the case of New Jersey Coalition Against War in the Middle East et al. v. JMB Realty Corp. et al. is not overturned, Saturday afternoon shoppers in New Jersey may find themselves regularly fighting for space with anti-war protesters or homeless-rights activists.

The New Jersey case began in November 1990, when a national debate raged over America's impending war with Iraq. An anti-war coalition in New Jersey began distributing literature and requesting donations at privately owned shopping malls. At malls in Short Hills and Hackensack, representatives of the groups began to canvass shoppers without asking permission or even advising the malls.

After receiving complaints from surprised customers, mall managers informed the demonstrators that they prohibited leafletting and demonstrations on their property, and asked them to leave. A month later, the demonstrators were back, running through the mall with banners chanting anti-war slogans and pushing customers out of the way. Customers understandably left the mall in droves.

Incensed that the malls were treating them like common trespassers, the antiwar organizations, with the assistance of the American Civil Liberties Union, filed a lawsuit demanding access. After losing in the lower courts, the New Jersey Supreme Court ruled late last year that the coalition had a free speech right under the state constitution to leaflet at the malls.

Chief Justice Robert Wilentz's opinion for the court is a paean to free speech rights and a dispirited essay on the decline of the traditional town square. Wilentz determined that because shopping malls played such an enormous role in the decline of downtown areas, they now have an obligation to provide a forum for social activists. The chief justice dismissed the delineation between private and public property as an anachronism.

But Justice Wilentz understands the desire to exclude outsiders in other contexts. In 1989, the same Justice Wilentz denied the producers of the film version of Tom Wolfe's The Bonfire of the Vanities use of an old New Jersey courtroom commonly used for movie production because he didn't like the book's depiction of minorities and thought it inappropriate for a New Jersey courthouse to be used to film a courtroom scene.

Unfortunately for Justice Wilentz, free speech rights apply to public forums. A U.S. District Court judge issued a stinging rebuke to Wilentz, overturning his order and holding that the learned justice had deprived the producers of their First Amendment free speech rights.

Despite Wilentz's record of selective concern for free speech, he held in the shopping mall context that free speech must win out over private property rights. Wilentz's opinion recognizes in passing the property rights of the mall owners, but concludes that "when they [property rights] are exercised...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." Wilentz then lets his true colors show: "That does not mean that one is fundamentally more important than the other, although we believe it is, but rather that here the correct resolution of the conflict between these rights is self-evident."

Out of supposed respect for property rights, the court stresses the ability of malls to impose reasonable "time, place, and manner" restrictions on the activists. These blithe assurances from the court, however, give little comfort to mall owners forced to accommodate social activists while still engaging in commercial activity - especially since they fear any such restrictions they might impose could be challenged with a lawsuit that they might lose.

Such concerns are well-founded. Professor Frank Askin of Rutgers Law School, who assembled the legal team that originally sued the shopping centers, is upset with what he considers the narrowness of the ruling. He is already threatening, along with an eager team of law students and attorneys, to bring suit against shopping malls that he believes are overly restrictive in what they allow. Askin may eventually be successful in opening the malls to all kinds of expressive activity; if malls truly are the new town squares, then on what principled basis could a future court deny access to all protected forms of expression that are on display in our downtowns, including political demonstrations, panhandling, and so on? Although limited to shopping centers in New Jersey, Professor Askin hopes that ACLU chapters in New York and Connecticut will try to reopen similar challenges. "They were waiting to see what the New Jersey Supreme Court would do," he said.

When a lower court in Connecticut granted similar access to activists, the Ku Klux Klan applied to leaflet at a mall in West Hartford. Not surprisingly, a counter-demonstration quickly formed when the Klan began to pass out literature. A riot ensued that was only quelled when SWAT teams from two surrounding counties were called in to seal off the mall's entrances. In the following months, sales at the mall declined by 35 percent.