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Access to places: Access to shopping malls

Private property that is open to the public, such as shopping malls, may be treated the same as public forums.¹⁹ In 1980, the Supreme Court said that state constitutions may be interpreted to provide greater protection for expression, and therefore newsgathering, than the U.S. Constitution. It upheld a state's right to provide a broader right to engage in expressive activity in a shopping mall, even at the expense of the owner's property interest.²⁰

Since the Court's decision, several state appellate courts have ruled on questions of freedom of expression in shopping malls. In 1994, New Jersey became the sixth state to recognize free-speech interests in shopping malls. The state supreme court ruled that shopping malls have taken the place of downtown districts as areas for free-speech activities. The court allowed leafleting by activists, but ruled that private property owners may impose restrictions on the time, place and manner of protests.²¹

However, at least one state high court has ruled that there is no constitutional right of access to shopping malls. In March 1999, the Minnesota Supreme Court held that neither the state nor the federal constitution allowed picketers to protest in a mall that was created partially with public money because no "state action" is involved in operating the mall.²²

Even the states that have recognized First Amendment interests in activities at shopping malls have not ruled directly on reporters' rights to gather news in such places.

Check with your news organization's lawyer or the Reporters Committee for the current status of shopping mall access in your state.

Notes

19. Marsh v. Alabama, 326 U.S. 501 (1946).

20. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980); see also Lloyd Corp. Ltd. v. Wiffen, 307 Ore. 674 (1989).

21. New Jersey Coalition Against War in the Middle East v. JMB Realty, 650 A.2d 757 (1994).

22. Minnesota v. Wicklund, 589 N.W. 2d 793 (Minn. 1999).

Next section: Access to places: What to do if you are denied access