Once upon a time, privately owned shopping centers were places with one purpose: to purchase goods and services. Now, shopping centers serve many purposes - entertainment centers, tracks for morning walkers, meeting places. This concentration of patrons is a magnet for individuals and groups who see centers as places for the dissemination of ideas and information. These groups will often collide with owners and managers, who find their expressive activities disrupt and conflict with shopping centers' primary purpose.
Twenty years ago, in PruneYard Shopping Center v. Robins, the Supreme Court held that the Constitution's private property protections do not prohibit the states from granting political petitioners and social activists a right of access to shopping center common areas for noncommercial purposes. However, the high court also declared that center owners are entitled to protect their business interests by reasonable restrictions on the time, place and manner of the activity.
Since the decision, more than 20 states have addressed the issue of public access to shopping centers, while not all have come to the same conclusion. Managers and owners of shopping centers must understand their rights and obligations and prepare for the almost inevitable day when the conflict between center and protester arises, often with the local news cameras rolling.
The first step a center manager must take is to become familiar with the state laws that apply to the center. While no controlling law concerning public access is in place in the majority of states, courts in California and New Jersey have held that some centers are required to allow individuals access to common areas for noncommercial expressive activity. In other states, courts have held that centers may ban all such activity. While Massachusetts, Oregon and Washington have taken a middle ground requiring access only for political signature gathering.
If the center is in a state where some access is mandated, it is important to determine whether the mall is covered by the requirement. Though the majority of cases concern large regional centers, the real issue is not necessarily size but whether the center is the functional equivalent of a traditional public forum, such as a city's downtown. Thus, even a smaller center may be required to permit access in certain states if it has a diversity of retail establishments where people are invited and encouraged to congregate. Where this exists, courts will determine whether the state constitution guarantees the right to engage in the challenged activity, weighing the interests of society and the property owner with respect to the property at issue.
It is critical that the center have a written policy that conforms to the applicable law, because centers that fail to have a written policy or to advise the public of that policy may lose the right to exclude individuals and groups, even where state law upholds the right to exclude. In states where some access is mandated, rules and guidelines help avoid litigation and ensure equal treatment of all applicants for access. Such rules provide management with a way to maintain control over the common areas consistent with the center's primary commercial purpose. Matters which should be addressed by the rules include how one applies for access, the times and locations that access will be permitted, as well as the number of participants allowed to engage in noncommercial expressive activity at any one time, prohibitions on blocking walkways and doors, and bans on offensive materials.
Enforcement is as important as the establishment of a written policy. When management ignores or bends the rules, a center can become vulnerable to access demands and litigation by others seeking the same special treatment. Soon, the center's rules will become worthless. For example, a manager may see allowing a charitable group to distribute leaflets as a PR benefit. However, by doing so, he may open the door to groups not seen in a positive light.
The center also must have a plan for responding to violations of the rules or policy. If protesters fail to heed warnings, the responsible manager should be ready to contact a regional manager or attorney for advice. However, because improper interference with activity could subject the center to litigation and negative publicity, the activity should not be stopped without approval from upper management or counsel, except in cases where the activity is or threatens to become violent.
Managing noncommercial expressive activity on shopping center property is one of the most legally challenging aspects of property management. Advance planning should enable shopping center managers to address most situations promptly and effectively, saving the center from the potential of far more serious consequences.