Daily Development for
Tuesday, June 13, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONSTITUTIONAL LAW; FREE SPEECH; SHOPPING CENTERS: Subject to reasonable restrictions, regional shopping centers are required Constitutionally to permit distribution of leaflets on political and social issues. New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corporation, 650 A.2d 757 (N.J. 1994). In a dramatic and sweeping 4-3 opinion, the New Jersey High Court becomes the first to apply a broad based "no state action" right to free speech in shopping centers. The opinion is based upon the free speech provisions of the New Jersey Constitution. Although the court aligns itself with a few decisions in other states, no other state high court has made such a comprehensive ruling regarding purely private property.

The court starts with the proposition that there is no constitutional right to free speech in privately owned shopping centers as a general rule. It acknowledges that the U.S. Surpeme Court has determined that there is no such right under the U.S. Constitution. Nevertheless, it analyzes the evolution of regional and community shopping centers to show that these centers owners deliberately have created special roles as that require that they serve as public forums. The centers, the court points out, are the direct descendants and functional counterparts of the downtown business district, and as such have effectively monopolized significant opportunities for free speech.

Citing a 1981 case involving Princeton University, the court states that under the New Jersey Constitution, the right of free speech is protected not only from abridgement by government but also from unreasonably restrictive and oppressive conduct by private entities. The determination of whether the owner of private property is required to allow leafleting on political and social issues is a factual one, and involves a balancing of interests.

On the one hand, regional shopping centers involve a "public use" that is so pervasive as to include an implied invitation for leafleting. This is so particularly in light of the traditional compatibility between free speech and downtown business districts. On the other hand, the owners of such malls are entitled to reasonable non-disturbance. In the case of a regional or community shopping center, the balance is tilted in favor of the right of freedom of speech, because of the public nature of the forum, and the relatively minimal interference with private property.

This right, said the court, is limited to leafleting and associated free speech; it does not include the use of bullhorns, megaphones, soapboxes, placards, pickets, parades and demonstrations, or anything other than normal speech as necessary to the effectiveness of the leafleting. Furthermore, the centers retain broad power to adopt rules and regulations concerning the time, place, and manner of exercising the right of free speech, which in most instances would include limits on the time of leafleting, the specific days, and the specific number of days.

Finally, the court noted that the requirement that all regional shopping centers permit leafleting on social issues does not apply to shopping centers which are not the functional equivalent of downtown business districts. It pointed to highway strip malls, single suburban stores, or small to medium shopping centers as being excluded from the class of shopping center included within its holding.

The dissent, by three of the seven judges, is particularly critical of the lack of clear standards controlling the discretion of the shopping center owners to limit speech. It claims that there is no real power of the center to protect itself from speech activities that could be ruinous to the center's business purposes.

Reporter's Comment: The court's line of demarcation is nebulous, to say the least. The general concept seems to be the evolution of the suburban shopping mall as the functional equivalent of the old central business district, and the even older town square. How and to what extent a "small to medium shopping center" differs from a "regional shopping center" for purposes of determining the applicability of this holding remains an open question.

Editor's Comment: Still another of the legion of New Jersey cases that reaches beyond precedent to mold social policy according to the vision of the justices. The close decision perhaps signals that the days of the New Jersey court's hallmark activitism may be coming to an end with new, more conservative governors controlling judicial appointments. In the meantime, however, we have a major inroad on ability of private landowners to conduct business in a way that properly takes advantage of the private market to allocate resources in the public interest.

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