Brief Fact Summary. Protestors against the Persian Gulf War requested permission to leaflet at malls and were denied access.
Synopsis of Rule of Law. Regional shopping centers must permit leafleting on societal issues, subject to reasonable standards set by the centers.
Regional and community shopping have become the new gathering point of citizens, displacing downtown business districts.
New Jersey grants its citizens substantive free speech rights, and those rights are not limited to protection from government interference.
In determining the existence of the State free speech right on privately owned property, three factors are the relevant consideration: (1) the nature, purpose 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 undertaken upon such property in relation to both the private and public use of the property.
The first two elements are considered together, and there is an implied invitation to leaflet in this case. The shopping centers intentionally draw people and become a replica of the community. They encourage public use of their property, and so that diminishes private property interests.
The third element examines the compatibility of the free speech sought to be exercised with the uses of the property. Here, business will not disappear because of the leafleting. Whatever disorder might otherwise exist can be controlled by the center by adopting rules and regulations concerning the time, place, and manner of such leafleting.
The speech can be accomplished without interfering with the owner’s profits. The free speech sought is a limited free speech right but is the most substantial in our constitutional scheme. Since the owner will have broad power to regulate, any interference caused by the speech will be negligible.
Dissent. Merchants should not be required to provide a forum, place or occasion for speech. They are in business for business sake and are not instruments of the state. The purpose of a shopping mall is to shop, not to educate.
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Discussion. States are entitled to provide more protection for free speech rights than that mandated by the federal constitution. So, even though the Supreme Court has not provided free speech rights to private shopping centers, a few states have interpreted their constitutions as providing such protection.