Last week brought the latest ruling in the ongoing saga about free speech in malls. A California court ruled that conversation rules at Westfield’s Roseville Galleria violate the Constitution.
At the property, Westfield bars any conversations between strangers that do not have to do with the mall itself. The case stemmed from a 2007 incident during which a youth pastor was kicked out of the property after he talked with three women about faith. The pastor sued the mall and won the ruling last week. Westfield is appealing that decision.
This is far from the first time that the issue of free speech and malls has been taken to the courts. At the heart of the debate has always been the tension between the concepts that malls are the modern equivalent of town squares, yet at the same time are clearly private property. Town squares, of course, have a rich history as places for public discourse, which can include controversial subjects and political and religious debates. But malls are places of commerce and under no obligation to provide forums for open debates and discussions.
An editorial in the Sacramento Bee echos the idea that malls should not try and limit speech and assembly:
Although they are private businesses, malls have become the current-day version of the public square, where Americans come to shop, to people-watch, mingle and, yes, even talk to strangers about something other than the latest hot gadget or which store has the best deals.
Indeed, malls are designed that way, with fountains, play areas and other public spaces.
Mall operators can’t have it both ways. They can’t go all out to lure as many people as possible, then unreasonably regulate how they can behave.
On the other hand, private property owners do have the right to dictate the rules of what happens within their properties. And mall owners have for years tried to regulate speech. Ultimately, they are places of commerce. And they do not want activities occurring that are going to intimidate people or distract them from shopping.
The debate goes at least as far back as the late 1960s. And it has been revisited for all sorts of reasons.
California’s ruling comes down squarely on the side of seeing malls as public places. But mall owners have won the argument in many other courts. So there is no clear precedent one way or the other on how courts rule in these issues. For example, a court in California in 2007 ruled that shopping malls can’t ban protesters from calling for boycotts of mall businesses. But the State Supreme Court in Connecticut in 2004 ruled a mall there had legally prohibited union members from distributing literature.
Other incidents that have become the subject of court cases include one where a mall patron in Albany in 2003 was kicked out of a mall for wearing a T-shirt with the words “Peace on Earth” and “Give Peace a Chance”. Antiwar protesters were also at the heart of the 1994 case called New Jersey Coalition Against War In The Middle East v. J.M.B. Realty and the Green Party won a ruling in 2000 after it was banned from a New Jersey property.
So what’s the right answer? My hunch is that mall owners aren’t about to change their attitude on this issue. They do not want their properties to become forums for open political or religious debates or rallies. They want their properties to be neutral spaces. The question is whether that stance is realistic any longer.
The debate weighs the commercial requirement to control a selling vehicle vs constitutional rights and which should prevail.
Irrespective of the thought that malls have become the new ‘town square’, a town square was never created for the express purpose of commercialization. And that is the rub. People confuse the purpose of a mall.
The right to free speech stops within certain private property. Mall owners don’t restrict a person’s right to express their thoughts and beliefs (thus supporting the constitutional right) only where they can express those thoughts and ideas (protecting their economic rights).
Malls want people to gather and linger so they have fountains, play areas, etc. but these are in place purely to advance the sale of product or services not to have amenities in and of themselves. Public facilities are available for these and for the non-commercial use of these facilities. This was the acid test previously: “what was the primary purpose for the invitation to the private facilities?” The argument was that the public wasn’t individually invited into a mall to shop and therefore the mall was deemed a public place.
It is a dangerous slope to extrapolate free speech whenever, wherever and however. Using the same argument, and being only slightly ridiculous, malls shouldn’t be singled out as public places. Any venue that encourages general participation should likewise be deemed as public, including: office building lobbies and churches or how about social media sites (which highly regulate content).
Conversely, if a mall is truly ‘public’ I know of several clients who would gladly turn over to the public (read government) many services that they have to contract privately for currently; or in the alternative, receive tax discounts to continue to provide those services themselves. To steal a line from the Sacramento Bee editorial: “they can’t have it both ways”.