from The Reporters Committee for Freedom of the Press (via Dave Lippman):
“… In 1968, the U.S. Supreme Court held that a shopping mall was the modern equivalent of main street, the “normal municipal business district.” It concluded that the landowner could not “limit the use of that property by members of the public in a manner that would not be permissible were the property owned by a municipality.” (Amalgamated Foods Employees Union Local 590 v. Logan Valley Plaza)
But in a subsequent decision the Court retreated from this position, stating that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” (Lloyd Corp. v. Tanner)
Then, in 1980, the U.S. Supreme Court essentially left the question of access to malls up to the states, holding that the federal Constitution affords no general right to free speech in privately-owned shopping centers. (PruneYard Shopping Center v. Robins)
However, state constitutions may be interpreted to provide greater protection for expression, and therefore newsgathering, than the U.S. Constitution. States may therefore afford the public greater protection for expression in a shopping mall, even at the expense of the owner’s property interest. Since the high court’s decision in PruneYard, several state supreme and appellate courts have ruled on the issue of whether their state constitutions give people the right to enter shopping malls for noncommercial purposes such as political campaigning or gathering signatures for an initiative petition.
Courts that have found constitutional protection for these activities have given a variety of reasons for their decisions.
For example, the Colorado Supreme Court found that a town’s financial support of a shopping mall, and the range of non-shopping activities allowed there, made the center the equivalent of a public forum. This finding was sufficient to trigger the state constitution’s free speech clause, which prevented the mall owners from excluding citizens involved in nonviolent political speech. Courts have also ruled that if a shopping mall allows some political opinions to be expressed, it must allow speakers of all types onto the premises.
Almost all courts that have found a right of access to shopping malls have also said that center owners may promulgate reasonable time, place and manner regulations on noncommercial speech activities. Under the three-part test discussed earlier, these rules must be content neutral, narrowly tailored to serve a significant state interest and leave open ample channels of communication.
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