NEW JERSEY — Shopping malls must allow access to protestors distributing leaflets on social issues, the state Supreme Court ruled in mid-December. However, mall owners can place reasonable time and location restrictions on the protesters, and do not have to allow speeches, parades and demonstrations.
The court’s 4-3 decision interprets the state constitution as granting a broader right of free speech than the First Amendment, which the U.S. Supreme Court has held does not provide protection to activities within shopping malls or on other private property.
The New Jersey case was brought after peace demonstrators passing out pamphlets against U.S. involvement in the Persian Gulf War were barred from ten New Jersey malls. Two lower courts had held that the mall owners could restrict speech.
Denying protesters access would “block a channel of free speech that could reach hundreds of thousands of people,” the high court ruled. “What is involved here is the fundamental speech right of a free society. The flow of free speech in today’s society is too important to be cut off simply to enhance the shopping ambiance in our state’s shopping centers.”
In determining whether free speech should be allowed on private property, the court followed a three-part analysis it developed in a 1978 trespass case against a political protestor at Princeton University. Under that standard, courts must examine the normal use of the property, the extent and nature of the public’s invitation to use it, and the purpose of the speech activity in relation to both private and public use of the property.
The high court noted that malls often promote themselves as the “new downtowns,” and extend open invitations to the public for a wide range of activities. While the primary purpose and use of malls is for commercial profit, the “predominant characteristic of the normal use of these properties is its all-inclusiveness,” according to the court.
“[P]eople go there just to meet, to talk, to ‘hang out,’ and no one stops them; indeed, they are wanted and welcome,” the court added.
Although the court’s decision does not mention whether journalists have a right of access to malls to gather news, Frank Askin, the protestors’ attorney, said the ruling was “broad enough to include newsgathering activities.”
(New Jersey Coalition Against War in the Middle East v. J.M.B. Realty, et al.; Protestors’ Counsel: Frank Askin, Newark)
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.