By Neil L. Shapiro
One morning the new manager of a commercial and retail complex is looking out of her office window. She can see the other five story office building that, like the one containing her office, sits at the eastern edge of the development. Stretching westward from both office buildings is a shopping mall featuring wide, partially covered walkways between stores and a large, open central courtyard with a fountain.
Suddenly the telephone rings. The chief of security is calling with a problem. A tenant complained that several people were standing outside its store, carrying signs and handing out leaf-lets. A security officer responded and found six people protesting the U.S. sanctions imposed on Iraq. The security officer told them to leave, but they refused to do so. One of them claimed to be a lawyer and told the security officer that the group had a constitutional right to protest there. What should the manager do?
Any owner or manager of property generally open to the public must be prepared for situations like this, and so must its lawyers. In some circumstances, the rights of private property ownership yield to the constitutional rights of free expression guaranteed to all members of the public. The task is to learn the precise extent to which, or situations in which, the rights of private property ownership must give way. Even when an owner must make a concession of public access for expressive purposes, limits may be placed on the conduct of persons who wish to use private property for those purposes. An owner should have in place a set of rules and regulations that both recognize and enforce those limits.
First Amendment Rights of Access
There was a time when a private property owner exercised virtually unfettered control over its property. As social standards and values changed, however, the law recognized the elevation of certain "public" interests above the rights of a private property owner. By 1926 it was settled that certain property uses must yield to the public interest served by zoning laws. Village of Euclid v. Ambler Realty Co., 47 S. Ct. 114 (1926). Twenty years later, in Marsh v. Alabama, 66 S. Ct. 276 (1946), the Supreme Court recognized that public interests could control not only what a landowner could do with its property but also the owner's freedom to exclude or limit the conduct of the public on that property.
Grace Marsh, a Jehovah's Witness, distributed religious literature in Chickasaw, Alabama on a sidewalk near the post office. She was arrested for trespassing. Chickasaw was a "company town," wholly owned by a shipbuilding company and, therefore, entirely private property. Had Chickasaw been like any other town, the sidewalk near the post office would have been public property. Ms. Marsh would have had a first amendment right to express herself freely on that public property. Could the owner of this company town prohibit Ms. Marsh from engaging in conduct that would have been legal in an identical but publicly owned location?
The Supreme Court decided that the company could not. It noted that, except for ownership by a private corporation, the town "has all the characteristics of any other American town." Id. at 277. Although careful to give due deference to private property rights, the Court found it necessary to weigh against those rights the constitutional right of free expression.
The Court discussed the historical importance of town centers as a forum for the free exchange of ideas and information. It recognized as well that no other location gives speakers the opportunity to convey their messages to their fellow citizens. People traveled from residential areas to the same town center, rendering it the only single forum in which a resident could communicate with other fellow citizens. The Court concluded that at least one element of traditional private property rights must yield to the demands of the first amendment.
In the years that followed Marsh, living patterns in the United States changed. Suburban areas grew vast, and the suburban mall became the new central shopping district. As had been true of small town centers before them, the malls drew people from the entire surrounding area for commercial and social purposes. In 1968 the Supreme Court was called on to determine whether shopping malls were the functional equivalent of Chickasaw, Alabama or whether their owners retained more powers of private ownership.
In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 88 S. Ct. 1601 (1968), members of a labor union began picketing a specific shopping center merchant because it employed nonunion workers. The Court found that the shopping center was "clearly the functional equivalent of the business district of Chickasaw involved in Marsh." Id. at 1608. Moreover, the "picketing carried on by petitioners was directed at patrons of the Weis Market located within the shopping center and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated." Id. at 1609 n.9. Thus, the Court held that the first amendment protected the rights of the union picketers and outweighed any contrary private property interests. The Court was careful in recognizing the limits of its holding, stating: "[w]e are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put." Id. That question was answered four years later in Lloyd Corp., Ltd. v. Tanner, 92 S. Ct. 2219 (1972).
Lloyd involved a shopping center that had a blanket prohibition against the distribution of handbills. The Court addressed the question of whether the shopping center could enforce that prohibition against Vietnam War protestors. Relying on their interpretations of Marsh and Logan Valley, the lower courts had held that the center could not. The Supreme Court disagreed. Logan Valley had involved picketing "directly related in its purpose to the use to which the shopping center property was being put," and the intended message was directed at the patrons of a particular store "located in the center of a large private enclave with the consequence that no other reasonable opportunities for the pickets to convey their message to their intended audience was available." Id. at 2226 (citing Logan Valley, 88 S. Ct. at 1609).
By contrast, in Lloyd, the handbills had nothing to do with the center or its operation. The picketers could have distributed them with equal effectiveness to their intended audience on any of the public sidewalks surrounding the center or in any other public location in nearby Portland. In the eyes of the Court, the shopping center owners invited the public "to come to the Center to do business with the tenants," and the Court concluded that "[t]here is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and shoppers whom they serve." Id. at 2227. Private property, the Court concluded, does not "lose its private character merely because the public is generally invited to use it for designated purposes." Id. at 2229.
The Supreme Court later an-nounced that the rationale of Logan
Valley did not survive the decision in Lloyd. Hudgens v. N.L.R.B., 96 S. Ct. 1029, 1035-37 (1976). Hudgens was decided under the National Labor Relations Act. In dicta, the Court reasoned that an invitation to shop did not equal an open invitation to exercise first amendment rights. The Hudgens Court did not, however, hold that private property would never be subject to the exercise of rights of free expression. See also Robins v. Pruneyard Shopping Center, 100 S. Ct. 2035, 2040 (1980).
Greater State Law Rights
As a result of this line of Supreme Court decisions, it is now reasonably well settled that the U.S. Constitution provides that limited expressive rights of the public may prevail over certain private property rights. But the inquiry does not end here. As a matter of their constitutions, some states have further expanded the public's free expression rights while shrinking equivalently the rights of private property owners.
In Robins v. Pruneyard Shopping Center, 153 Cal. Rptr. 854 (Cal. 1979), aff'd, 100 S. Ct. 2035 (1980), the Cal-ifornia Supreme Court interpreted the California constitution to guarantee the right of free expression on all subjects in shopping centers and on comparable property. The California court recognized that the U.S. Supreme Court did not grant such broad protection, but it determined that the California constitution could grant that protection without conflicting with the U.S. Constitution. The court noted that property rights must yield to the public interests served by zoning laws, environmental laws and other legislation that limit the precise uses to which private property may be put. The court was persuaded that " 'all private property is held subject to the power of the government to regulate its use for the public welfare.' " Id. at 857 (quoting Agriculture Labor Relations Bd. v. Superior Ct., 128 Cal. Rptr. 183 (Cal. 1976), app. dismissed, 97 S. Ct. 33 (1976)). The California court concluded that the state had the power consistent with the U.S. Constitution to grant that greater protection. " 'A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations [citation omitted] would not markedly dilute defendant's property rights.' " 153 Cal. Rptr. at 860-61 (quoting Diamond v. Bland, 113 Cal. Rptr. 468 (Cal. 1974) (Mosk, J., dissenting), cert. denied, 95 S. Ct. 152 (1974)).
The shopping center owner was no doubt cheered when the U.S. Supreme Court agreed to review the California decision. The property owner argued that California's expansion of the rights of free expression constituted a partial "taking" of the owner's property in violation of the fifth amendment requirement for compensation when private property is taken for public purposes. Pruneyard, 100 S. Ct. at 2041. While reaffirming the Lloyd limit on first amendment protection, the Court disagreed with the property owner. In substance, the Court concluded that a state could subordinate the rights of private property ownership to those of public speech to a greater extent than required by the first amendment without inflicting undue harm on the rights of private property owners. "There is nothing to suggest that preventing [the property owners] from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center." Id. at 2042.
A Minnesota appellate court was recently confronted with the issue of whether the free speech provision of the Minnesota constitution offered protection to demonstrating citizens at the Mall of America. State v. Wicklund, No. C7-97-1381, 1998 Minn. App. LEXIS 373 (Minn. Ct. App. 1998). The case arose when individuals were asked to refrain from picketing outside a Macy's store. The picketers refused to leave and were subsequently charged with trespassing. The court acknowledged that, under Lloyd, the Bill of Rights did not extend to activity at a privately owned shopping center and concluded that the Minnesota constitution likewise did not protect expressive conduct at privately owned shopping centers. Id. at 8.
The court declared that the state constitution should not apply to the Mall of America because the state constitution only applies to state actors. Id. at 12. The picketers argued that the shopping center was a state actor because it received public funding to finance its construction. The court rejected the contention that public funding fulfills the state actor requirement. The fact that the Mall of America received public funding for approximately 13% of its total construction costs was not enough to make the shopping center a state actor. Id. at 13-14. Wicklund is important because it marks the first reported case in which public demonstrators have used the public funding argument to try to qualify a private shopping center as a state actor.
Acceptable Rules and Regulations
Where does all of this leave a property owner or manager and its lawyers? They should:
- Know whether the relevant state requires property owners to grant only the minimal public access for expressive purposes that the first amendment mandates or whether the state requires greater sacrifice of private property rights in favor of free expression.
- Be aware of the precise extent of any greater rights the state grants.
- Have in place a set of rules and regulations consistent with the applicable law.
Even the most pro-expression states allow private property owners to impose certain restrictions based on the time, place and manner of the expressive activities to avoid interference with normal business operations.
In California, perhaps the most pro-expression state, an appeals court recently reviewed a series of rules and regulations imposed by six different shopping malls in Union of Needletrades v. Superior Ct., 65 Cal. Rptr. 2d 838 (Cal. Ct. App. 1997). The court found that those rules and regulations were generally consistent with the expanded protections California grants to expressive conduct.
There, the plaintiff union was engaged in a labor dispute with Guess?, Inc. over wages and working conditions of the individuals manufacturing its products. Guess operated retail stores in shopping malls owned by the defendants. In each instance, the union wanted to picket and distribute leaflets in front of the Guess stores, but in each instance the union was limited in its conduct by the rules and regulations the centers had promulgated to govern the exercise of free speech rights. The court examined the centers' rules under the Pruneyard standard and found them to be acceptable "time, place and manner limits." Id. at 856.
Although the union wanted to picket and distribute leaflets directly outside the Guess stores, the malls' rules did not allow the union to do so. Each of the centers designated specific areas in which expressive conduct could occur. No center had a designated area immediately in front of or adjacent to a Guess store, although one center accommodated the pro-testers with access to a space across from the target store. The court recognized that "a shopping center is constitutionally permitted to protect 'important rights of substance; those rights are identified as freedom from disruption of normal business operations and freedom from interference with customer convenience.' " Id. at 847 (quoting H-CHH Assocs. v. Citizens for Representative Gov't, 238 Cal. Rptr. 841, 850 (Cal. Ct. App. 1987), cert denied, 108 S. Ct. 1248 (1988)).
The court explained that a "shopping center exists as a center of commerce" and that its " 'function is to facilitate the ease of commerce and to promote the business of its merchant tenants.' " Id. at 847. In light of these views, a center may prohibit expressive conduct in "areas normally subject to congestion" and, in fact, can exclude expressive activities " 'entirely from areas where their presence would threaten personal danger or block the flow of . . . traffic, such as doorways and loading areas.' " Id. at 847.
Each center imposed limits on the number of consecutive days a particular organization could engage in expressive activity, and each center required advance notice before it would allow an organization to conduct any expressive activity. The court had no trouble with these limitations. It recognized that they were "content neutral" and were "drawn to further the center's interest of giving equal access to the many organizations which seek entry to its premises."
Id. at 850. Each center also had some "blackout periods" during which no expressive activity was permitted. These "blackout periods" were equally justified, primarily for traffic flow and safety.
Each center placed limits on the size of signs that might be displayed and required prior submission of all signs, posters or handouts. The court allowed the shopping centers to "regulate style, as opposed to content" of expressive signs and recognized as well that the malls could prohibit the use of " 'fighting words,' obscenities, grisly or gruesome displays or highly inflammatory slogans likely to provoke a disturbance" of the peace. Id. The court also did not find any constitutional impediment to requiring prior submission of signs and handouts.
Each center had a rule requiring advance disclosure of the identities of the specific participants in the expressive activity. The court concluded that, without prior identification of the individuals, the shopping center could not determine whether the applicant had actually authorized those individuals to be there. That identification procedure also permitted the centers to determine if any individual had previously caused injury or damage at other locations and gave some recourse in the event injuries or damage occurred. In further recognition of a center's right to protect itself against liability or damage flowing from the expressive conduct, the court held that a center could require the applicant to purchase insurance if there were objective criteria by which the center could determine that the nature or timing of the activity created a foreseeable risk of injury or damage to persons or property. Id. The court also approved the practice of some centers that al-lowed an applicant to post a damage deposit in lieu of insurance. Id. at 854.
The thoroughness with which the California court analyzed each rule should offer guidance in preparing restrictions that pass constitutional muster as a matter of both federal and state law in those states following California's lead or having a state constitution with a more restrictive view of expressive conduct.
Owners and managers of property generally open to the public must be prepared when individuals or groups seek to express their views on the premises. They will be prepared if, with the assistance of their counsel, they have promulgated and are willing to follow a set of rules and regulations that comply with federal and applicable state law. Perhaps our hypothetical manager would have had a better day if she had been prepared with such a set of rules.
Neil L. Shapiro is a partner with Landels Ripley & Diamond LLP in San Francisco, California.
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