In an update of his own, Instapundit references an article by a former student, Jennifer Niles Coffin, that discusses the mall free speech issue in great detail. For example,
There is no consistent rationale behind the decisions that grant free speech protections to the visitors of shopping malls. The Colorado Supreme Court found sufficient entanglement with the government to support a finding of state action. The Oregon court based its decision on the initiative and referendum powers reserved to Oregon citizens in the state constitution. The California and New Jersey courts balanced the property rights of mall owners against the free speech protections of the state constitution and held that the right of citizens to engage in free expression outweighed the property interest of the mall owners. Both courts dispensed with the traditional state action requirement in that context. The New Jersey court also noted the “affirmative right” granted by the free speech provision of the New Jersey Constitution. Interestingly, the language of New Jersey’s free speech provision is nearly identical to that of states in which the courts have refused to extend free speech protection in shopping malls.
However, most of these cases involve petition drives, or protests–things that seem more likely to disrupt commerce than wearing a shirt.
What makes a shirt different? Again, this is from a layperson, but Title II of the Civil Rights Act might. It basically says that if you are open to the public (and the Act gives an expansive definition that surely includes malls), then you can’t discriminate against (or bar, or evict) people on the basis of “race, color, religion, or national origin”, but it doesn’t mention political ideology. So if the shirt said “I’m a Jehova’s Witness and therefore I believe that we should give peace a chance”, then the act seems to apply. But if it just says “Give peace a chance”?? Again, what distinguishes this case from the cases Ms. Coffin discusses is that (based on reports I’ve seen), they were only walking around the mall in their shirts, in the process of shopping. They were not doing anything, such as pamphleteering, petitioning, or protesting, that would interfere with commerce (other than the innate fear of spending money and desire to flee that seeing the phrase “Give Peace A Chance” might induce.)
On one level it’s a silly issue–it’s a T-shirt. But on another it’s fundamentally disconcerting that people would be harassed for something like this. Regardless of your view on the war, here is something worth keeping in mind.