Brief Fact Summary. Demonstrators against the war were asked to leave a shopping center after they distributed handbills in the mall. The demonstrators claimed this violated their First Amendment rights.
Synopsis of Rule of Law. There is no First Amendment right of access in a privately owned and operated shopping center if the speech in question is not related to the activities of the shopping center.
Issue. May a privately owned shopping center prohibit the distribution of handbills on its property when the handbills are unrelated to the shopping center’s operations?
Held. Yes. Judgment reversed and remanded.
Alternative means of communication exist for the demonstrators. The handbills could have been distributed on public streets or in a park, or as the patrons left the mall.
The handbills had no relation to the shopping center because the handbills were about the Vietnam War.
The First Amendment only applies to state action. Property does not lose its privacy rights merely because the public is invited in. So, a store does not become public because the public is invited to shop in it.
Since adequate alternative means of communication exist, it would be an invasion of the shopping center’s property rights to require it to allow the distribution of the anti-war handbills.
A balance must be found between the freedom of speech and the freedom of a private property owner to control his property. In this case, the balance can only be struck in favor of speech.
The shopping center is the center of this community and the place where most people go for goods or services. If speech is to reach this community, it must reach them in the center.
The shopping center is only worried that some of its patrons will be disturbed by the activity. This is not a strong enough reason to outweigh the rights of speech.
Shopping centers in the suburbs are the functional equivalent of a public business area, and so should be a means of communicating with citizens.
The more an owner opens his property to general public, the more his rights become circumscribed by the statutory and constitutional rights of those who use it.
Discussion. A private shopping center does not have to provide a forum for communication when that communication does not relate to the shopping center. Free speech access on private property is not required by the First Amendment.