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.
The bill is being introduced in response to a 1985 New York State Court of Appeals decision that permitted the management of a shopping mall to exclude from the mall anti-nuclear power demonstrators, SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496 (1985).
The court held that the New York State Constitution does not protect free speech in privately-owned shopping centers; however, the court suggested that extending the right of free speech to shopping malls could properly be accomplished by legislation.
This amended version of the bill includes a provision that would require, consistent with Supreme Court jurisprudence, that shopping malls permit free speech and expressive activity, including the right to wear clothing or buttons that convey a political or ideological point of view.
This provision was added to the bill after security guards at the Crossgates Mall, located in the Capital Region of New York, accosted a shopper (who also happened to be a government lawyer) because he was wearing a T-shirt that said, “Give Peace A Chance.”
When the man calmly refused to remove the T-Shirt, the guards called the police, who arrested and handcuffed him. This incident occurred on March 3, 2003. 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.
The owner of a Staten Island mall applied for a grant to fund its "Art in the Marketplace" program. Some objected to the spending of federal money in a privately owned, for-profit mall; however, NEA Chairman John Frohnmeyer concluded, "The shopping center of today reflects the fairs and marketplaces of Renaissance times" and the grant was approved.
The director of the Staten Island mall commented in a news story, “What better place to be exposed to a community's artistic excellence than in a shopping center, the public gathering place for the community?" (emphasis added).
The Staten Island mall in New York, along with malls in Massachusetts, Florida, Virginia, Louisiana, Missouri, New Jersey and Washington state received public funding for non-commercial programs and activities that took place in the common areas of shopping malls.
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. Other state legislatures have recognized the evolving role and function of the shopping mall, and have enacted laws that protect the exercise of free speech rights in these malls, while also recognizing the authority of the property owners to impose appropriate time, place and manner restrictions on speech and expression.
The United States Supreme Court has upheld such laws where a reasonable balance has been struck between the rights of those wishing to express themselves and the rights of shopping mall owners to utilize their property as they see fit Pruneyard v. Robbins, 447 U.S. 74 (1980).
The instant legislation, A.4163-A, has been drafted to conform to the standards set forth by the court both in Pruneyard and in Kaiser Aetna v. United States, 444 U.S. 164 (1979). This bill is limited in scope. It requires that only the largest shopping malls in the state permit expressive activity.
Furthermore, the bill is sensitive to the concerns raised by shopping mall owners. It allows both middle-sized shopping centers and large shopping malls to promulgate reasonable time, place, and manner regulations for speech and expressive activities. Management would be free to limit any activity that poses a danger to public safety.
Additionally, regulations could be established by mall managers that would require a prior application for certain expressive activities; designation of a limited portion of the common area of the shopping center or mall for free speech activities; limitation on the number of people who can participate in a demonstration or other free speech activity; and restrictions on the use of sound or video equipment. Regulations could also be introduced to restrict the solicitation of money, as well as littering, fighting, or obscene gestures.
Common Objections To The Bill
Permitting free speech and expression will lead to harassment of shoppers. This is a false issue. The bill provides managers with the authority to maintain public safety and order. The shopping mall can regulate the areas in which, for example, petitioners or leafleters may engage in such activity.
A mall’s operator can expel persons from the mall if they refuse to limit their expressive activity to a designated site in the common area of the mall. This “policing” authority would all but eliminate the possibility of speakers approaching shoppers who did not wish to be engaged in conversation. — There is too great a chance for conflict involving persons or groups with opposing viewpoints.
There would be no reason for this problem to occur. As noted previously, the bill gives to the management of a mall the regulatory authority to assure that speech and expressive activity does not endanger or disturb others. — Shopping malls will be required to assume liability for injuries that may occur as a result of expressive activities.
Years of experience in California and other states have demonstrated that this concern is simply unfounded. Shopping centers can limit the size of any gathering, as well as the conduct of the persons who gather. Disturbances are highly unlikely to occur due to a limited number of persons engaging in peaceful expression.
The right of free expression means nothing if its protections do not extend to ideas that some may find disagreeable or controversial. The ideas to which no one objects, or about which no one cares, do not need protection. Our nation long ago concluded that the best way to counter the public expression of contentious ideas is to refute them in open debate; to attempt to sequester these ideas and avoid public deliberation is, simply, un-American.
By unduly restricting public expression and speech in the new "town square," shopping malls limit the potential audience of those wishing to congregate and communicate. What’s more, in enforcing such an overly restrictive view of speech and association, shopping mall operators may miss important opportunities to fill the public space of the mall with potential shoppers and to generate good will among the larger community.
In supporting this bill, the NYCLU does so with the conviction that the legislation’s provisions are consistent with the democratic principles that honor the vital role of free speech and expression in our society. This bill has been carefully drafted so as to protect the constitutional rights of property owners. As a practical matter, the bill places an insignificant burden on shopping malls -- a lesser burden than that imposed by, say, necessary fire and health regulations.
The interest in preserving our country's democratic tradition of respecting the free and open expression of ideas far outweighs the bill’s minimal impact on property owners.
In reaffirming its strong commitment to defend First Amendment rights of free speech, the NYCLU endorses this bill and urges its passage.