Why Can Shopping Malls Limit Free Speech?

Last week, 61-year-old Stephen Downs was arrested for refusing to remove a T-shirt with the words “Peace on Earth” and “Give Peace a Chance” in a shopping mall in Albany, N.Y. Why don’t citizens have the same free speech rights in shopping centers that they do on city streets and parks?

Because malls are private property, and our constitutional rights are triggered only when the government (and not a private citizen) tries to limit our freedoms. As malls expand to include outdoor boulevards, movie theaters, and coffee houses, many contend that we should have free expression rights in these “private forums.” Their argument is that malls play the same role city streets and town squares once played in our democracy.

The first cases asserting free speech rights in privately owned shopping centers were successful. In the 1946 case of Marsh v. Alabama, the Supreme Court held that the business district of a privately owned “company town” was the same as a public street for First Amendment purposes, finding that “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” A 1968 case— Amalgamated Food Employees Union v. Logan Valley Plaza—held that a privately owned mall was the “functional equivalent” of the business district in Marsh.

But realizing they had overreached in the early cases, and sensitive to what they had done to private property rights, the Supremes reversed course in Hudgens v. NLRB,a 1976 case holding that the First Amendment guarantees no free speech rights in private shopping centers. And in an important 1980 case, Pruneyard v. Robins, the court upheld the general notion that citizens have no First Amendment rights to express themselves in privately owned shopping centers while still agreeing that a group of California students had the right to hand out leaflets and collect signatures in a private California mall.

The magic bullet in Pruneyard? The high court found that state constitutions may confer upon citizens broader speech rights than the federal Constitution, and the broadly worded California Constitution gave citizens the right to speak freely, even in private malls. The court dismissed the shopping center’s claims that such a rule infringed on its free speech rights, by forcing it to tolerate unwanted speech on private property, and rejected the argument that forcing them to open up to public debate constituted an unconstitutional “taking” of private property.

Pruneyard was an invitation from the high court to the states to amend and interpret their own state constitutions to permit free speech in private forums if they so desired. But 23 years later, only six states have joined California in recognizing a state constitutional right to speak and assemble on private property: New Jersey, Colorado, Oregon, Massachusetts, Washington, and Pennsylvania (and several of them have waffled after doing so). Even the states conferring these broader speech rights do so only on two types of private property—shopping malls and non-public universities—and the only speech protected there is political speech.

The New York Court of Appeals expressly refused to apply New York’s constitutional protections to free speech in shopping malls, which is why Stephen Downs was hauled away for suggesting that we give peace a chance. The charges were later dropped.

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