Are Malls Public Places?

If so, then the Crossgates Mall was clearly in error. Instapundit, (Glenn Reynolds, who of course is an actual law professor, so I’m treading on dangerous ground) says this:

A reader wonders if he’s [the shirt-wearer] got a First Amendment lawsuit. The answer is no, because the mall is a private entity and doesn’t have to observe the First Amendment (he may, however, have an action under New York law or New York’s state constitution).

I am not a lawyer, but I vaguely recalled that issues like this have received considerable attention in the context of limitations on abortion protestors’ free speech rights vs. the right of would-be patrons of abortion clinics to have unfettered access to the clinics, which are, naturally, on private property. So I did a little googling and found a different case entirely, and one that is more on point in the current context: a 1979 decision by the California Supreme Court called Robins v. Pruneyard Shopping Center[23 Cal.3d 899 (1979), aff”d, 447 US 74 (1980)]. There, inter alia, the court ruled that

“to protect free speech and petitioning is a goal that surely matches the protecting of health and safety, the environment, aesthetics, property values and other societal goals that have been held to justify reasonable restrictions on private property rights.”

The California court specifically ruled that malls are “quasi-public” places (Pruneyard is, alas, the name of the shopping mall).

The mall appealed the ruling to the U.S. Supreme Court on 3/18/198, which affirmed the California Supreme Court’s ruling on June 9, 1980 (If you follow the previous link, the “appelants” means the mall). The ruling was issued by (now Chief) Justice Rehnquist. At issue was whether a group of students could solicit signatures to a petition in opposition to a UN resolution, or whether the Pruneyard Mall had the right to evict them “because their activity violated shopping center regulations prohibiting any visitor or tenant from engaging in any publicly expressive activity that is not directly related to the center’s commercial purposes.” The Mall won in District Court, and in California Appelate Court, but lost in the California Supreme Court, leading to the USSC case.

Here are some selected quotes from the Rehnquist-authored USSC ruling.

  • State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner’s property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.
  • The reasoning in Lloyd Corp. v. Tanner, 407 U.S. 551 – which [447 U.S. 74, 75] held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills unrelated to the center’s operations – does not … limit a State’s authority to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution. And a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.
  • The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause of the Fifth Amendment, appellants having failed to demonstrate that the “right to exclude others” is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a “taking.”
  • The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the [447 U.S. 74, 84] common areas of the shopping center. In these circumstances, the fact that they may have “physically invaded” appellants’ property cannot be viewed as determinative.
  • We conclude that neither appellants’ federally recognized property rights nor their First Amendment rights have been infringed by the California Supreme Court’s decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants’ property. The judgment of the Supreme Court of California is therefore affirmed.

The last bullet point is important, because what the USSC really says is that it’s ok for the State of California to not let mall owners restrict speech that the mall owners dislike (i.e., they can’t kick out the students if said students are orderly). The ruling does not, however, say that there is an affirmative right to free speech in malls, just that the states are allowed to create such rights if they so choose. Still, the USSC is on record as saying in various ways that malls are semi-public places, which would probably imply that, in spite of Reynolds’ reply to his reader, the shirt-wearers would get past summary judgement if they filed a lawsuit.


P.S. The Oregon Supreme Court in 2000 ruled that malls can ban petitions. Follow the link and scroll down to see that there are a variety of state rulings on this subject, which may mean this issue is ripe for certiorari. On the other hand, this is a case of states differing, not the various Circuit Courts of Appeals differing, so it may just be an “it’s up to the states” issue.

Update: I see that CalPundit beat me to this one, though he gives less detail.