Plaintiff is a group who opposes military intervention in Kuwait and decided to spread leaflets that urged readers to contact their representatives and senators. They eventually targeted the shopping center owned by defendant. At one mall Plaintiffs were permitted to use a community booth and were provided with professional signs. However, the conditions defendants imposed “made it difficult… to reach the public.” The mall stated that Plaintiff could not approach shoppers; and at another mall they were required to demonstrate liability insurance for $1M before using the community booths. The six other malls refused to grant plaintiffs permission.
“Whether the defendant regional and community shopping centers must permit leafleting on societal issues.”
Yes, they must be permitted, “subject to reasonable conditions set by them.” The ruling is based on the people’s right to free speech. The struggle in this case is between “the paramount right of the citizen to be informed and the rights of property owners.” Prior cases have ruled that “shopping centers are the functional equivalent of downtown business districts and that the private owners could therefore not interfere with the exercise of the right of free speech.” However, subsequent cases reversed this trend and modern precedent is that the constitution does not afford a general free speech right in shopping centers, nor do most state constitutions.
There are several elements worth considering: “(1) the nature, purposes, and primary use of such private property, generally, its ‘normal’ use (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity under taken upon such property in relation to both the private and public use of the property.”
(1) and (2) – The primary purpose of the mall is profit and the primary use is commercial. Malls encompass pretty much everything that people do when they’re outside of their homes. The invitation to the public is substantial. Malls invite patrons, even if they do not pay to come, nor if they purchase anything. The mall itself mirrors a downtown business district. Because downtown districts no longer exist as they once did, malls represent the “new downtown district.” “In a country where free speech found its home in the downtown business district, these centers can no more avoid speech than a playground avoid children.”
(3) “… where expressive activity is permitted and therefore compatible with those uses, presumptively so is leafleting, and the burden should fall on those who claim it is not.” The speech held in this case is compatible with the use of the property, as it was in former downtown districts.
A final test is a balancing test that exists on a sliding scale between private property rights and free speech. Where private property becomes more committed to public use and enjoyment, public expression is more permitted. In this case, the sliding scale can point no further to public use – the mall invites any and every one to their premises.
Mall owners are merchants and merchants are not required to provide a forum for speech making. They are business owners, not municipalities, states, or villages; and the comparison to a public square or downtown district is a false one. Malls are not suited to handle public forum provision; it is not their purpose, nor is it their reason for operation.