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Free Speech and Malls

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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.

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Elaine Misonzhnik

Senior associate editor Elaine Misonzhnik has been writing for National Real Estate Investor since June 2006 and has covered commercial real estate for more than 12 years. She first became...
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