Wednesday :: Jul 21, 2004

Free Speech Now On Sale At Your Local Mall


by pessimist

Let's Give a Shout Out To -- The Supremes!!

Yes, the best group of state jurists Republican campaign contributions can influence have done it again!

High Court Sides With Mall In Free Speech Case

The state Supreme Court has ruled that Connecticut shopping malls are not public spaces, so they do not need to allow free speech. The high court agreed. Lawyers for the Crystal Mall argued that the only thing the mall is required to do is allow people to shop there.

Ah! Out of the mouths of lawyers!

But this issue brings up an important point - if there is no free speech on private property, how long before there is censorship on the Internet.

The Internet, like a mall, is privately owned and not a public utility. Access to it is by permission of the owner. And just like a mall, the courts will find that the owner has the right to refuse entry to anyone at their discretion.

I used to live in Chicago, home of the infamous Bughouse Square, a public park where anyone with a issue could stand on a literal soapbox and invite debate.

But note the distinction - public park. And that is the point.

Why Can Shopping Malls Limit Free Speech?

Why don't citizens have the same free speech rights in shopping centers that they do on city streets and parks?

Because malls are private property, and our constitutional rights are triggered only when the government (and not a private citizen) tries to limit our freedoms.

As malls expand to include outdoor boulevards, movie theaters, and coffee houses, many contend that we should have free expression rights in these "private forums." Their argument is that malls play the same role city streets and town squares once played in our democracy.

The first cases asserting free speech rights in privately owned shopping centers were successful. In the 1946 case of Marsh v. Alabama, the Supreme Court held that the business district of a privately owned "company town" was the same as a public street for First Amendment purposes, finding that "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."

The 1968 case of Amalgamated Food Employees Union v. Logan Valley Plaza held that a privately owned mall was the "functional equivalent" of the business district in Marsh.

At this point the Court takes a new stance. under the conservative legal eagle Warren Burger, a Nixon appointee, the Court's stance shifts toward the owner while attempting to push the responsibility for maintaining the public's right to free speech onto the states.

But realizing they had overreached in the early cases, and sensitive to what they had done to private property rights, the Supremes reversed course in Hudgens v. NLRB, a 1976 case holding that the First Amendment guarantees no free speech rights in private shopping centers.

Would you like some coffee with that waffle? Our current Lead Supreme took it to new heights - or depths:

And in an important 1980 case, Pruneyard v. Robins, the court upheld the general notion that citizens have no First Amendment rights to express themselves in privately owned shopping centers while still agreeing that a group of California students had the right to hand out leaflets and collect signatures in a private California mall.

This is where the states get stuck with the responsibility.

The high court found that state constitutions may confer upon citizens broader speech rights than the federal Constitution, and the broadly worded California Constitution gave citizens the right to speak freely, even in private malls.

The court dismissed the shopping center's claims that such a rule infringed on its free speech rights, by forcing it to tolerate unwanted speech on private property, and rejected the argument that forcing them to open up to public debate constituted an unconstitutional "taking" of private property.

Pruneyard was an invitation from the high court to the states to amend and interpret their own state constitutions to permit free speech in private forums if they so desired. But 23 years later, only six states have joined California in recognizing a state constitutional right to speak and assemble on private property: New Jersey, Colorado, Oregon, Massachusetts, Washington, and Pennsylvania (and several of them have waffled after doing so).

Even the states conferring these broader speech rights do so only on two types of private property—shopping malls and non-public universities—and the only speech protected there is political speech.

This decision covers speech on a very real and tangible place, but what of a virtual space such as the Internet? Just as Warren Burger demonstrated in Hudgens, the owner of the space can decide if he's going to allow free and open discussion of the issues, or if only 'official party line' discussions will be allowed.

Would a site such as The Left Coaster remain available to the public under such conditions? Is George Warmonger Bush an evil tyrant-wannabe with delusions of a God-given destiny of world domination?

Increasingly, the concept of a public place is shrinking. How many communities across the nation have no public parks???? Even in places where there are public parks such as New York and Chicago (thank you, Daniel Burnham!), there are non-legal reasons to avoid them if one carries an unpopular message, and even there, should one be so brave, there is little protection from an attitude of 'we'll enforce what we say is the law now and we'll apologize after the court tells us to later' from the police if there is any reason to believe that there will be trouble of any kind - especially political.

Linda Ronstadt just found this out the other day. Attempting to dedicate a song to Michale Moore, she was fired by her employer for political speech while on stage, technically on the job. Had she been in the audience attempting to exercise her free speech rights, she would have been removed from the premesis under the rights of the owner to restrict speech deemed unacceptible. Had she even been in the parking lot, the same would have happened. Her rights are only protected in areas deemed public places - and that definition, whther through legal or other means, has become so narrow as to constitute an almost invisible and unreachable place. For instance, I'm not aware of any public parks in Las Vegas (not that I'm an expert). Everything else there is owned by someone - and is subject to their interpretation of what constitutes unacceptible speech.

The New York Legislature is attempting to do something about this situation:

A.4163-A/ Englebright, et al. -- AN ACT to amend the civil rights law, in relation to freedom of speech and petition in certain shopping centers and shopping malls

The New York Civil Liberties Union strongly supports this bill, which would require the largest privately-owned shopping malls to permit persons to exercise their right of free speech and the right to petition in the common areas of the shopping malls, subject to reasonable regulations concerning time, place and manner. Owners of middle-sized shopping centers could decide not to permit such activities, but would be required to state the reasons for such a policy in an accommodation plan that is readily accessible to the public at no cost. The bill would also require that large shopping malls as well as middle-sized shopping centers create a display space for announcements and public service messages.

Large shopping malls have replaced traditional public forums -- such as town squares, parks, and sidewalks -- as community gathering spots. Mall owners have encouraged this phenomenon by inviting the public into shopping centers for events that have little to do with retail shopping -- such as art exhibits, amusement park rides, and walking clubs. As a result large numbers of people congregate daily at the shopping mall, not only to shop, but also to socialize and to enjoy the amenities available in the public, or common, areas of the mall.

The federal government, acting through the National Endowment for the Arts, implicitly recognized that shopping malls are the "town squares" of the modern age when the agency decided in November of 1990 to fund arts projects in several shopping malls located throughout the nation.

Mall owners have designed and marketed the mall as a place to gather -- to shop and socialize. It is only reasonable, then, that the proprietors of yesteryear’s town square should take on some of the public responsibilities that heretofore had been assumed by the town mayor or by the owner of the town’s gathering place -- particularly so, if federal funds have facilitated the exodus from Main Street.

Free and open expression is the touchstone of a non-totalitarian, democratic society; this vital legacy should not be abandoned merely because the populace has gone to the mall.

This is especially important considering these facts:

Free Speech in Shopping Malls

The number of shopping centers in the United States grew from under 100 in 1950 to 30,641 in 1987, and that number has only increased. In most American communities, shopping centers have virtually all of the functions of a public gathering place; they host numerous public and private services, including banks, movies, restaurants, discotheques, parking facilities, post offices, reference libraries and even churches. Moreover, mall owners often encourage the public to congregate for events unrelated to shopping or commerce, such as art exhibits, amusement park rides and walking clubs, thus assuming an expanded role as the new downtown, where the public shops, socializes and participates in community debate.

Therefore, in order to keep citizen political action alive, we must demand the
right to conduct First Amendment activities in the malls and shopping centers that have replaced government forums as places for the public to gather and meet.

The very things that the Bush government has no desire to promote!

State courts are attempting to rectify this. California once again confirmed this right in 2003, and Michigan and New Jersey courts are headed in that direction. Considering that the Warren and Rehnquist courts have already established though their opinions that the states shall have such decisions as their jurisdiction, I await the wonderful ill-legal mind of John the Annointer AsssKKKroft to come up with a reason why this won't be so. That way, Rehnquist will have an out to reverse himself without looking like the lying, evil hypocrite he is.

He won't have to look too far - Connecticut has opened that particular door.

Speech protections different for malls, greens, court says

The shopping mall may be replacing the village green as a meeting space, but the state Supreme Court ruled Monday that the suburban fortresses of capitalism need not provide the same free speech protections as a city street.

"The size of the mall, the number of patrons it serves, and the fact that the general public is invited to enter the mall free of charge do not, even when considered together, advance the plaintiff’s cause in converting private action into government action," Justice Joette Katz wrote.

Connecticut’s high court also sided with mall owners in a suit against Westfarms in 1984, when the National Organization for Women was denied permission to solicit shoppers. The court found that no state action had been taken to interfere with free speech.

So there it is, America. Take away all of the privately-owned property and how much is left? And as more and more of it is being turned over to private interests by BushCo, is shrinks daily. Cyberspace will be encroached as well.

It's only a matter of time - and will. You Will Be Assimilated.


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pessimist :: 1:35 AM :: Comments (20) :: Digg It!