(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
NEW JERSEY COALITION AGAINST WAR IN THE MIDDLE EAST, ET AL. V. J.M.B. REALTY
CORPORATION, ETC., ET AL. (A-124/125-93)
Argued March 14, 1994 -- Decided December 20, 1994
WILENTZ, C.J., writing for a majority of the Court.
The question in this case is whether regional shopping centers, or malls, must permit the distribution
of leaflets on societal issues.
Plaintiff is a coalition of numerous groups opposed to U.S. military intervention in the Middle East.
On November 10, 1990, it sought to distribute leaflets at very large regional and community shopping centers
urging the public to contact members of Congress and persuade them to vote against such military
intervention.
All defendants are enclosed malls. Ten of these malls are regional shopping centers, and one is a
very large community shopping center. A regional shopping center is defined in the industry as one that
provides shopping goods and general merchandise in full depth and variety, is built around at least one full-line department store, and ranges in size from 300,000 to 1,000,000 in square feet of gross leasable area. A
community shopping center is smaller and offers a wide range of facilities for the sale of goods built around
a junior department store or variety store. All of the malls in this action employ or use part-time (or in
some cases, on-duty) municipal police officers, usually in uniform and armed. All permit and encourage a
variety of non-shopping activities on their premises. Some of the non-shopping activities permitted by these
malls involved speech, politics, and community issues.
Despite the myriad of permitted uses, including many involving the distribution of issue-oriented
literature, all of the shopping centers claim to prohibit issue-oriented speech and the distribution of leaflets.
They claim that such issue-oriented speech conflicts with their commercial purpose -- to get as many
shoppers as possible on the premises and provide an atmosphere that would encourage buying. The evidence
was unpersuasive, however, in proving probable financial loss from the distribution of leaflets that is limited
in duration and frequency.
Many of the malls granted the Coalition permission to distribute leaflets on their premises, subject
to certain conditions, such as prohibiting members from approaching shoppers to offer literature. Others
required the Coalition to purchase and show proof of liability insurance, which the Coalition was not able to
obtain. Six of the malls refused permission outright. The Coalition's request for emergent judicial relief was
denied. A plenary trial on the substantive issue of the Coalition's right to distribute leaflets on the malls'
premises was thereafter held, but by then the military intervention had already occurred and the engagement
was over.
The trial court entered judgment in favor of the malls on the ground that the malls' property was dedicated solely to commercial uses inconsistent with political speech; that the invitation to the general public was limited to such uses; and that, therefore, under this Court's ruling in State v. Schmid, 84 N.J. 535 (1980), no State constitutional right of free speech existed on the malls' premises. The trial court found it unnecessary to rule on the malls' claims that the relief sought by the Coalition, if granted, would constitute a taking of their property without just compensation, and would abridge their freedom of speech, in violation
of the Federal and State Constitutions. The Appellate Division affirmed, relying substantially on the trial
court's findings and opinion.
The Supreme Court granted the Coalition's petition for certification and cross-petitions filed by two
of the malls.
HELD: The right of free speech embodied in our State Constitution requires that regional shopping centers
must permit the distribution of leaflets on societal issues, subject to reasonable conditions set by the
centers.
1. The Supreme Court takes judicial notice of the fact that suburban shopping centers have
substantially displaced the downtown business districts of this State as the centers of commercial and social
activity. (Pp. 21-26)
2. The United States Supreme Court has held that the Federal Constitution affords no general right
to free speech in privately-owned shopping centers, since the centers' action is not "state action." Most state
courts facing the issue have ruled the same way when State constitutional rights have been asserted.
Nonetheless, the states that have found their constitutional free-speech-related provisions effective regardless
of "state action" have ruled that shopping center owners cannot prohibit that free speech. (Pp. 26-33)
3. This Court held in Schmid that a private university that had invited the public to participate in
discussions of current and controversial issues could not prohibit a member of the public from distributing
leaflets and selling political materials on the campus. Schmid sets forth three factors to be considered in
determining the existence and extent of the State free speech right on privately-owned property: (1) the
nature, purposes, and primary use of such property (its "normal" use); (2) the extent and nature of the
public's invitation to use the property; and (3) the purpose of the expressional activity in relation to both the
private and public use of the property. The outcome depends on a consideration of all three factors and
ultimately on a balancing between the protections to be accorded the rights of private property owners and
the free speech rights of individuals to distribute leaflets on their property. (Pp. 33-39)
4. The Supreme Court finds that each of the Schmid factors and their ultimate balance support the
conclusion that the distribution of leaflets is constitutionally required to be permitted at the shopping centers.
The predominate characteristic of the normal use of these properties is its all-inclusiveness. This
characteristic is not at all changed by the fact that the primary purpose of the centers is profit and the
primary use is commercial. The non-retail uses, expressive and otherwise, demonstrate that the malls'
invitation to the people is also all-inclusive. The third factor is the compatibility of the free speech sought to
be exercised with the uses of the property. The more than two hundred years of compatibility between free
speech and the downtown business district is proof enough of the compatibility of distributing leaflets in
these shopping centers. (Pp. 39-48)
5. A balancing of the Coalition's expressional rights and the private property rights of the malls further
supports the conclusion that the distribution of leaflets must be permitted. The weight of the Coalition's free
speech interest is the most substantial in our constitutional scheme. Leaflets can be distributed at these
centers without discernible interference with the malls' profits or the shoppers' enjoyment. (Pp. 48-54)
6. The Supreme Court's decision applies a constitutional provision written many years ago to a society
changed in ways that could not have been foreseen. If free speech is to mean anything in the future, it must
be exercised at these centers. The constitutional right encompasses more than distributing leaflets and
associated speech on sidewalks located in empty downtown business districts. (Pp. 55-61)
7. Two of the malls contend that granting the Coalition the constitutional right of free speech deprives them of their property without due process of law, takes their property without just compensation, and
infringes on their right of free speech. When private property rights are exercised, as in this case, in a way
that drastically curtails the right of freedom of speech in order to avoid a relatively minimal interference with
private property, the property rights must yield to the right of freedom of speech. (Pp. 61-63)
8. The holding today applies only to regional shopping centers, and to the lone community shopping
center that is a defendant in this action. The record before the Court is insufficient to conclude that the
holding should apply to all community shopping centers. The holding does not apply to highway strip malls,
football stadiums, or theaters, since the uses at such locations do not approach the multitude of uses found at
regional shopping centers. The holding is also limited to the distribution of leaflets and associated speech in
support of, or in opposition to, causes, candidates, and parties -- political and societal free speech. It does
not include bullhorns, megaphones, pickets, parades, or demonstrations. Finally, the shopping centers have
broad power to adopt rules and regulations concerning the time, place and manner of exercising the right of
free speech. In order to give the centers time to address these matters, the Court's judgment will not take
effect until sixty days from the date of this decision. (Pp. 64-74)
Judgment of the Appellate Division is REVERSED, and judgment is hereby entered, effective sixty
days from the date of this decision, in favor of the Coalition; judgment is entered against Riverside Square
Mall and the Mall at Short Hills declaring that the grant of free speech rights to the Coalition does not
deprive them of the rights they have asserted under both the Federal and State Constitutions.
JUSTICE GARIBALDI, dissenting, in which JUSTICE CLIFFORD and JUDGE MICHELS join, is
of the view that the majority distorts the test announced in Schmid; dismisses completely the rights of
private-property owners to regulate and control the use of their own property; disregards the trial court's
findings of fact; and instead relies primarily on old theories that the United States Supreme Court and most
other state courts long ago discarded. Under the majority's rudderless standard, so long as owners of private
property offer an opportunity for many people to congregate, the owners must grant those people free access
for expressional activities, regardless of the message or of its disruptive effect.
JUSTICES HANDLER, O'HERN and STEIN join in CHIEF JUSTICE WILENTZ'S opinion.
JUSTICE GARIBALDI has filed a separate dissenting opinion in which JUSTICE CLIFFORD and JUDGE
MICHELS join. JUSTICE POLLOCK did not participate.
SUPREME COURT OF NEW JERSEY
A-124/
125 September Term 1993
NEW JERSEY COALITION
AGAINST WAR IN THE MIDDLE
EAST, SYLVIA ACKELSBERG, and
DAVID CLINE,
Plaintiffs-Appellants
and Cross-Respondents,
v.
J.M.B. REALTY CORPORATION,
d/b/a Riverside Square, PRUTAUB
JOINT VENTURE, d/b/a The Mall
at Short Hills,
Defendants-Respondents
and Cross-Appellants,
and
CHERRY HILL CENTER, INC., d/b/a
Cherry Hill Mall, KRAVCO, INC.,
d/b/a Hamilton Mall, EQUITY
PROPERTIES & DEVELOPMENT CO.,
INC., d/b/a Monmouth Mall,
KRAVCO, INC., d/b/a Quakerbridge
Mall, ROCKAWAY CENTER ASSOCIATES,
d/b/a Rockaway Townsquare,
WOODBRIDGE CENTER, INC., d/b/a
Woodbridge Center, LIVINGSTON MALL
VENTURE, d/b/a Livingston Mall,
HARTZ MOUNTAIN INDUSTRIES, INC.,
d/b/a The Mall at Mill Creek,
Defendants-Respondents.
Argued March 14, 1994 -- Decided December 20, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
266 N.J. Super. 159 (1993).
Frank Askin and William J. Volonte, on behalf
of the American Civil Liberties Union
Foundation, argued the cause for appellants
and cross-respondents (Mr. Askin, Howard
Moskowitz, and Mr. Volonte, attorneys.
Joseph Aviv, a member of the Michigan bar,
argued the cause for respondents and cross-appellants (Cuyler, Burk & Matthews,
attorneys; Mr. Aviv, Jo Ann Burk, Peter
Petrou, and Bruce L. Segal, a member of the
Michigan bar, on the brief).
Nicholas deB. Katzenbach argued the cause for
respondents Cherry Hill Center, Inc., d/b/a
Cherry Hill Mall and Woodbridge Center, Inc.,
d/b/a Woodbridge Center (Riker, Danzig,
Scherer, Hyland & Perretti, attorneys; Anne
M. Patterson, on the brief).
Ronald E. Wiss argued the cause for
respondents Rockaway Center Associates, d/b/a
Rockaway Townsquare and Livingston Mall
Venture, d/b/a Livingston Mall (Wolff &
Samson, attorneys; Mr. Wiss and Sandra
Nachshen, on the brief).
Brian J. McMahon argued the cause for
respondents Kravco, Inc., d/b/a Hamilton
Mall, Kravco, Inc., d/b/a Quakerbridge Mall
(Crummy, Del Deo, Dolan, Griffinger &
Vecchione, attorneys).
Mark A. Steinberg submitted a letter in lieu
of brief on behalf of respondent Equity
Properties and Development Co., Inc., d/b/a
Monmouth Mall.
Curtis L. Michael submitted a letter brief on
behalf of respondent Hartz Mountain
Industries, Inc., d/b/a The Mall at Mill
Creek (Horowitz, Rubino & Associates,
attorneys).
Bernard A. Kuttner submitted a brief on
behalf of amici curiae, United Farm Workers
of America, AFL-CIO, and New Jersey Consumer
Coalition.
The opinion of the Court was delivered by
WILENTZ, C.J.
The question in this case is whether the defendant
regional and community shopping centers must permit
leafletting on societal issues. We hold that they must,
subject to reasonable conditions set by them. Our ruling is
limited to leafletting at such centers, and it applies nowhere
else.See footnote 1 It is based on our citizens' right of free speech
embodied in our State Constitution. N.J. Const. art. I, ¶¶ 6,
18. It follows the course we set in our decision in State v.
Schmid,
84 N.J. 535 (1980).
In Schmid we ruled that our State Constitution conferred
on our citizens an affirmative right of free speech that was
protected not only from governmental restraint -- the extent
of First Amendment protection -- but from the restraint of
private property owners as well. We noted that those state
constitutional protections are "available against unreasonably
restrictive or oppressive conduct on the part of private
entities that have otherwise assumed a constitutional
obligation not to abridge the individual exercise of such
freedoms because of the public use of their property." Id. at
560. And we set forth the standard to determine what public
use will give rise to that constitutional obligation. The
standard takes into account the normal use of the property,
the extent and nature of the public's invitation to use it,
and the purpose of the expressional activity in relation to
both its private and public use. This "multi-faceted"
standard determines whether private property owners "may be
required to permit, subject to suitable restrictions, the
reasonable exercise by individuals of the constitutional
freedoms of speech and assembly." Id. at 563. That is to
say, they determine whether, taken together, the normal uses
of the property, the extent of the public's invitation, and
the purpose of free speech in relation to the property's use
result in a suitability for free speech on the property that
on balance, is sufficiently compelling to warrant limiting the
private property owner's right to exclude it; a suitability so
compelling as to be constitutionally required.
Applying Schmid, we find the existence of the
constitutional obligation to allow free speech at these
regional and community shopping centers clear. Although the
ultimate purpose of these shopping centers is commercial,
their normal use is all-embracing, almost without limit,
projecting a community image, serving as their own
communities, encompassing practically all aspects of a
downtown business district, including expressive uses and
community events. We know of no private property that more
closely resembles public property. The public's invitation to
use the property -- the second factor of the standard -- is
correspondingly broad, its all-inclusive scope suggested by
the very few restrictions on the invitation that are claimed,
but not advertised, by defendants. For the ordinary citizen
it is not just an invitation to shop, but to do whatever one
would do downtown, including doing very little of anything.
As for the third factor of the standard -- the
relationship between the purposes of the expressional activity
and the use of the property -- the free speech sought to be
exercised, plaintiff's leafletting, is wholly consonant with
the use of these properties. Conversely, the right sought is
no more discordant with defendants' uses of their property
than is the leafletting that has been exercised for centuries
within downtown business districts discordant with their use.
Furthermore, it is just as consonant with the centers' use as
other uses permitted there. Indeed, four of these centers
actually permitted plaintiff's leafletting (although it took
place in only two of those).
We therefore find the existence of a constitutional
obligation to permit the leafletting plaintiff seeks at these
regional and community shopping centers; we find that the
balance of factors clearly predominates in favor of that
obligation; its denial in this case is unreasonably
restrictive and oppressive of free speech: were it extended
to all regional and community shopping centers, it would block
a channel of free speech that could reach hundreds of
thousands of people, carrying societal messages that are at
its very core. The true dimensions of that denial of this
constitutional obligation are apparent only when it is
understood that the former channel to these people through the
downtown business districts has been severely diminished, and
that this channel is its practical substitute.
We hold that Schmid requires that the free speech sought
by the plaintiff -- the non-commercial leafletting and its
normal accompanying speech (without megaphone, soapbox,
speeches, or demonstrations) -- be permitted by defendants
subject to such reasonable rules and regulations as may be
imposed by them. This free speech can be, and we have no
doubt will be, carefully controlled by these centers. There
will be no pursuit or harassment of shoppers. Given this
limited free speech right -- leafletting, given the centers'
broad power to regulate it, and given experience elsewhere, we
are confident that it is consonant with the commercial
purposes of the centers and the varied purposes of their
shoppers and non-shoppers.
We recognize the concerns of the defendants, including
their concern that they will be hurt. Those concerns bear on
the extent and exercise of the constitutional right and we
have addressed them in this opinion. We recognize the depth
and legitimacy of those concerns even apart from their
constitutional relevance. Defendants have expended enormous
efforts and funds in bringing about the success of these
centers. We hope they recognize the legitimacy of the
constitutional concern that in the process of creating new
downtown business districts, they will have seriously
diminished the value of free speech if it can be shut off at
their centers. Their commercial success has been striking but
with that success goes a constitutional responsibility.
Without doubt, despite the fact that the speech permitted
-- leafletting -- is the least obtrusive and the easiest to
regulate, and despite the centers' broad power to regulate,
some people will not like it, any more perhaps than they liked
free speech at the downtown business districts. Dislike for
free speech, however, has never been the determinant of its
protection or its benefit. We live with it, we permit it, as
we have for more than two hundred years. It is free speech,
it is constitutionally protected; it is part of this State,
and so are these centers.
In the summer and fall of 1990 our government and our country were debating what action, if any, should be taken in response to Iraq's invasion of Kuwait. The issue eclipsed all others. The primary competing policies were military intervention and economic sanctions. On November 8, President Bush announced a major increase in the number of troops stationed in Saudi Arabia and the Persian Gulf in order to provide "an adequate offensive military option." President's News Conference, 26 Weekly Comp. Pres. Doc. 1789, 1792 (Nov. 8, 1990). Plaintiff -- a coalition of numerous groupsSee footnote 2 - opposed military intervention and sought public support for
its views. For that purpose, plaintiff decided to conduct a
massive leafletting campaign on November 9 and November 10,
urging the public to contact Congress to persuade Senators and
Representatives to vote against military intervention. The
November 9 effort was aimed at commuter stops around the
State.See footnote 3 The November 10 targets were shopping centers, the
ten very large regional and community shopping centers whose
owners are the defendants herein.
On November 9, plaintiff -- aware of the shopping
centers' probable refusal -- sought judicial relief ordering
the centers to permit the leafletting. That effort was
unsuccessful. The trial court ruled that plaintiff had failed
to prove refusal; appellate review was also unsuccessful.
On November 10 plaintiff's members and representatives
went to the malls and requested permission to leaflet. Four
of the defendant malls granted plaintiff permission to leaflet
on their premises, and plaintiff did in fact leaflet at two of
those malls. Monmouth Mall initially denied plaintiff's
request, but later issued plaintiff a permit to use its
community booth for two days in January, and even provided
professional signs and displays for the group. Plaintiff used
the booth on those days. The conditions imposed by mall
management, however, made it difficult for plaintiff to reach
the public. Among other restrictions, plaintiff was not
allowed to approach passersby to offer them literature. The
Mall at Mill Creek, Cherry Hill Mall, and Woodbridge Center
granted plaintiff permission to use their community booths,
but required that plaintiff obtain or show proof of liability
insurance in the amounts of $1,000,000 for bodily injury and
$50,000 to $1,000,000 for property damage. Plaintiff was
unable to obtain the necessary insurance, and requested that
the malls waive the requirement. Woodbridge Center waived the
insurance requirements, allowing plaintiff to distribute
leaflets from a table, while The Mall at Mill Creek and Cherry
Hill Mall refused.
Although the six remaining malls refused permission, one
of those malls -- Hamilton -- ultimately allowed plaintiff to
leaflet. While it initially denied permission, asking
plaintiff to leave the premises, it eventually allowed
plaintiff to leaflet undisturbed for approximately three to
four hours.
As a consequence of defendants' refusal to allow
plaintiff access to the malls, and the restrictions imposed on
such access where allowed, few of the thousands of people at
those malls on November 10 learned of plaintiff's views.
Plaintiff again sought emergent judicial relief ordering
the centers to permit its members to leaflet in support of
their view that those forces already deployed refrain from any
military action. Relief was again denied, both at the trial
and appellate level. Plenary trial of the substantive issue
of plaintiff's right to leaflet on defendants' premises was
thereafter held, but by then the military intervention had
occurred and the engagement was over.See footnote 4
Each of the ten defendant shopping centers is very large.
For instance, one defendant mall, Woodbridge Center, serves an
area with a population of 1,400,000. On an average day in
1990, approximately 28,750 people shopped there. November 10,
1990, however, was not an average day. Not only was the tenth
a Saturday, a day that is generally very busy for shopping
malls, but it was also part of Veterans' Day weekend. Thus,
presumably many more people visited malls on that day than on
an average day. Indeed, plaintiff's witnesses testified that
they sought to leaflet on that day because of the large
expected turnout of shoppers during the holiday weekend.
Nine of the defendant shopping centers are "regional
centers." A regional shopping center is defined in the
industry as one that
provides shopping goods, general merchandise,
apparel, furniture and home furnishings in full
depth and variety. It is built around the full-line
department store, with a minimum GLA [gross leasable
areaSee footnote 5] of 100,000 square feet, as the major drawing
power. For even greater comparative shopping, two,
three or more department stores may be included. In
theory a regional center has a GLA of 400,000 square
feet, and can range from 300,000 to more than
1,000,000 square feet.
[National Research Bureau, Shopping Center
Directory 1994, Eastern Volume (1993).]
The regional centers involved in this case have from 93 to 244
tenants, including not only department stores, but also
restaurants and other retail and business establishments, such
as art galleries, automotive centers and gas stations, banks,
brokerage houses and finance companies, leisure and
entertainment centers, optical centers, travel agencies, hair
salons, shoe repair shops, theaters, ticket agents, insurance
agencies, doctors' offices, and a United States postal booth
during the holiday seasons. One housed a United States Post
Office substation until approximately 1990. Each mall is
surrounded by parking facilities that hold from 3,075 to 9,000
vehicles. The acreage of the regional centers ranges from
31.44 to 238 acres.
The tenth defendant is a "community" shopping center. A
community center is smaller than a regional center and lacks
the variety of merchandise available at a regional mall. The
industry defines a community center as one that includes
a wide[] range of facilities for the sale of soft
lines (apparel) and hardlines (hardware, appliances,
etc.) . . . . It is built around a junior department
store, variety store or discount department store
although it may have a strong specialty store. The
typical size of a community center is 150,000 square
feet. In practice a community center can range from
100,000 to 300,000 square feet.
The only community center involved in this case, the Mall at
Mill Creek, covers twenty-seven acres. It has a discount
department store, a supermarket, sixty-two smaller retail
stores, and a seven-restaurant food court.
All of the defendant shopping centers are enclosed malls
-- enclosures covering not only the tenants of all kinds but
also substantial common areas linking them and providing space
for people to congregate. In those malls where plaintiff was
refused permission to leaflet, the refusal was absolute;
plaintiff was denied access to the enclosed areas as well as
the parking lots and sidewalks outside of the enclosures.
Although each mall asserts that it does not resemble a
downtown business district, like those districts, each of
these malls employs or uses part-time (or in some cases, on-duty) municipal police officers, usually in uniform and armed.
Quakerbridge Mall houses a municipal police substation.
Police officers, almost always off-duty, patrol the inside of
Cherry Hill Mall, Woodbridge Center, Livingston Mall, and the
Mall at Short Hills. The interiors of Rockaway Townsquare
Mall and Monmouth Mall are patrolled by on-duty municipal
police officers. Some of the malls (such as Riverside and
Monmouth) hire off-duty police officers for traffic control
when necessary. Most of the malls' parking lots are patrolled
by municipal police officers.
Each of the defendants permits and encourages a variety
of non-shopping activities on its premises.See footnote 6 Six of the malls
provide access to community groups. Riverside Square Mall has
a meeting room, with an occupancy of 150 persons, that is
available to the public. Monmouth Mall rents a civic
auditorium to various organizations. Monmouth Mall also has a
community booth from which various groups are allowed to
espouse their causes, distributing leaflets and literature to
passersby. Hamilton, the Mall at Mill Creek, Cherry Hill
Mall, and Woodbridge Center provide similar community booths.
Some of the non-shopping activities permitted by
defendants involved speech, politics, and community issues.
Some of these activities, moreover, have been permitted by the
very defendants who denied plaintiff permission to leaflet.
For example, Rockaway Townsquare Mall held a Crime Prevention
Day, has hosted community weekends, and allowed one of
plaintiff's constituent members, Morris County SANE/FREEZE, to
participate. Livingston Mall also has sponsored community
weekends where civic groups were allowed to position
themselves in the common area of the mall, distribute
literature and speak about issues relevant to their causes,
and Quakerbridge has hosted a similar community day.
In addition to sponsoring community weekends or days,
these malls have sponsored other events that included
political speech or concerned issues of civic importance.
Livingston Mall allowed a voter registration drive to be
conducted by the League of Women Voters, and sponsored a Child
ID Day with the Livingston Police. Rockaway Townsquare Mall
sponsored a voter registration drive in conjunction with the
Morris County Republican party, and a United Way Day of Caring
where sixty-seven agencies distributed information on diverse
topics, such as substance abuse, homelessness, hunger,
literacy, and youth counselling. Local officials and
dignitaries participated in the "kick-off" for that event.
Quakerbridge Mall hosted an exhibition of local municipal
groups with the Mall's Merchants Association and Lawrence
Township.
The remaining malls have permitted similar events. For
example, Cherry Hill Mall allowed Senator Bill Bradley's
office to conduct a voter registration drive in the fall of
1990. Woodbridge Center allowed Senator Bradley to walk
through its mall greeting and shaking hands with its patrons
in the summer of 1990 when he was running for re-election.
Both Cherry Hill Mall and Woodbridge Center allowed the
Marines to sponsor "Toys for Tots" drives. Woodbridge
Center's press release stressed that the focus of the event
would be on children whose mothers or fathers were serving in
the Persian Gulf. The Mall at Mill Creek allowed the New
Jersey Prosecutor's Victim and Witness Association to present
information for crime victims, allowed a Bradley for United
States Senate Voter Registration Drive to be held, and allowed
military recruitment by the United States Naval Sea Cadets and
the United States Army.
Monmouth Mall sponsored a Spring Community Fair, held a
Berlin Wall Exhibit, allowed free "Video Postcards From Home"
to the Persian Gulf troops to be taped on its premises, and
has a senior citizen activity network office. Riverside
Square Mall allowed Senator Bradley's office to conduct a non-partisan voter registration drive. Riverside Square also
sponsored a United States Marine Corps "Toys for Tots" drive,
a Bergen County Read-In Festival, which involved the
participation of local officials, and an Earth Day Celebration
with local and national environmental organizations. Hamilton
Mall hosted a Coastal Cops Celebration Holiday. This program,
which is coordinated by the mall and local businesses, gives
children ages six to twelve the opportunity to participate in
a clean-up effort of the area's beaches.
Furthermore, based on statements at oral argument (and on
our own experience) we deem it likely that defendants permit
candidates, accompanied as always by a few aides, to seek
support by walking through the mall, approaching shoppers,
offering a handshake, and saying a few words (or more) to
each. We would be surprised if those aides did not have
leaflets available.
Despite the myriad of permitted uses, including many
involving the distribution of issue-oriented literature -
leaflets -- and accompanying speech, despite the explicit
permission given to plaintiff to leaflet at four of them, and
despite the display of tenants' posters at most of them,
posters that were visible from the common areas and expressed
support for our armed forces in the Persian Gulf, all of the
centers claim to prohibit issue-oriented speech and
leafletting.
Defendants presented evidence that issue-oriented free
speech, and especially controversial free speech, conflicted
with their commercial purpose: that purpose is to get as many
shoppers as possible on the premises and to provide an
atmosphere that would encourage buying. Leafletting,
speaking, and the assumed related consequences of such
actions, were described as in conflict with shopping,
particularly impulse buying, a major goal of such centers. If
designed to prove probable financial loss, the evidence was
unpersuasive. At malls of this size, carefully regulated
leafletting, limited in duration and frequency, and permitted
only in selected areas, seems unlikely to have the slightest
impact on actual revenues, even if some shoppers dislike it.
At most the impact would be negligible. Despite plaintiff's
assertion that California's shopping centers, where
leafletting has been permitted since 1979, have suffered no
adverse financial consequences whatsoever, defendants
suggested nothing concrete to the contrary.See footnote 7 And the same is
true of Bergen Mall, apparently a regional shopping center,
where issue-oriented leafletting has been permitted since 1984
by virtue of a trial court injunction (and where plaintiff
leafletted against our Persian Gulf military involvement).
At the plenary trial, plaintiff sought a permanent
injunction restraining defendants from preventing or
interfering with plaintiff's free speech activities, subject
to reasonable conditions. It claimed this substantive right
to free speech under New Jersey's Constitution as well as at
common law. No claim of right was made under the Federal
Constitution. Plaintiff also challenged specific regulations
imposed by some of the malls including: 1) content-based
regulations prohibiting offensive speech, 2) requirements that
the group seeking access to the mall obtain insurance, 3)
regulations prohibiting people engaging in expressive activity
from approaching mall visitors and 4) arbitrary limitations on
mall access.
The trial court entered judgment in favor of defendants,
denying all relief, on the ground that defendants' property
was dedicated solely to commercial uses inconsistent with
political speech; that the invitation to the general public
was limited to such use; and that, therefore, under our ruling
in State v. Schmid,
84 N.J. 535 (1980), no State
constitutional right of free speech on defendants' premises
existed. New Jersey Coalition Against War in the Middle East
v. J.M.B. Realty Corp.,
266 N.J. Super. 195 (Ch. Div. 1993).
The trial court ruled, in effect, that defendants retained the
right to exclude those not invited to its premises to the same
extent as any other private property owner. Given that
judgment, the trial court found it unnecessary to rule on
defendants' contention that the relief sought by plaintiff, if
granted, would constitute a taking of their property without
just compensation, would deprive them of their property
without due process of law, and would abridge their freedom of
speech by forcing them to provide a forum for the speech of
others, all in violation of the Federal and State
Constitutions. The Appellate Division affirmed, relying
substantially on the trial court's findings and opinion.
266 N.J. Super. 159 (1993).
We granted both plaintiff's petition for certification
and cross-petitions filed by two of the defendants.
134 N.J. 564 (1993). We reverse, and declare that plaintiff has a
State constitutional right to leaflet at defendants' shopping
centers, subject to reasonable conditions, and that such right
does not infringe on any constitutional right asserted by
defendants.
Before reaching our discussion of the law, we must first
examine the background against which this question is raised.
We know its most important outline. Regional and community
shopping centers significantly compete with and have in fact
significantly displaced downtown business districts as the
gathering point of citizens, both here in New Jersey and
across America.
Statistical evidence tells the story of the growth of
shopping malls. In 1950, privately-owned shopping centers of
any size numbered fewer than 100 across the country. Steven
J. Eagle, Shopping Center Control: The Developer Besieged,
51 J. Urb. L. 585, 586 (1974). By 1967, 105 of the larger
regional and super-regional malls existed. This number
increased to 199 in 1972 and to 333 in 1978. Thomas Muller,
Regional Malls and Central City Retail Sales: An Overview, in
Shopping Centers: U.S.A. 180, 189 (George Sternlieb & James W.
Hughes eds., 1981). By 1992, the number expanded to at least
1,835. Shopping Center World/NRB 1992 Shopping Center
Census, Shopping Center World, Mar. 1993, at 38.See footnote 8 Thus, from
1972 to 1992 the number of regional and super-regional malls
in the nation increased by roughly 800%. In New Jersey, the
number of malls greater than 400,000 square feet, or, roughly,
the number of regional and super-regional malls, has more than
doubled over the last twenty years, increasing from 30 in 1975
to 63 in 1992. Shopping Center Census..., Shopping Center
World, Jan. 1977, at 21; Shopping Center World/NRB 1992
Shopping Center Census, supra, at 46.
The share of retail sales attributable to regional and
super-regional malls has demonstrated a similar pattern.
Nationally, regional malls' market share of "shopper goods
sales" was 13" in 1967 and 31" in 1979. Muller, supra, at
187. In 1991 retail sales in "shopping centers," a category
that includes not only regional malls but other types of urban
and suburban retail centers, "accounted for over 56" of total
retail sales in the United States, excluding sales by
automotive dealers and gasoline service stations."
International Council of Shopping Centers, The Scope of the
Shopping Center Industry in the United States, 1992-1993, at 1
(1992). In New Jersey in 1991, retail sales in shopping
centers constituted 44" of non-automotive retail sales. Id.
at 34.
Thus, malls are where the people can be found today.
Indeed, 70" of the national adult population shop at regional
malls and do so an average of 3.9 times a month, about once a
week. Id. at 1. Therefore, based on adult population data
from the 1990 census,See footnote 9 more than four million people on
average shop at our regional shopping centers every week,
assuming New Jersey follows this national pattern.
The converse story, the decline of downtown business
districts, is not so easily documented by statistics. But for
the purposes of this case, we do not need statistics. This
Court takes judicial notice of the fact that in every major
city of this state, over the past twenty years, there has been
not only a decline, but in many cases a disastrous decline.
This Court further takes judicial notice of the fact that this
decline has been accompanied and caused by the combination of
the move of residents from the city to the suburbs and the
construction of shopping centers in those suburbs. See
Western Pa. Socialist Workers 1982 Campaign v. Connecticut
Gen. Life Ins. Co.,
515 A.2d 1331, 1336 (Pa. 1986) ("Both
statistics and common experience show that business districts,
particularly in small and medium sized towns, have suffered a
marked decline. At the same time, shopping malls, replete
with creature comforts, have boomed.").
That some downtown business districts have survived, and
indeed thrive, is also fact, demonstrated on the record before
us. The overriding fact, however, is that the movement from
cities to the suburbs has transformed New Jersey, as it has
many states. The economic lifeblood once found downtown has
moved to suburban shopping centers, which have substantially
displaced the downtown business districts as the centers of
commercial and social activity.
The defendants in this case cannot rebut this
observation. Indeed, the shopping center industry frequently
boasts of the achievement. The industry often refers to large
malls as "`the new downtowns.'" Note, Private Abridgment of
Speech and the State Constitutions, 90 Yale L.J. 165, 168 n.19
(1980) (quoting Shopping Center World, Feb. 1972, at 52). It
correctly asserts that "the shopping center is an integral
part of the economic and social fabric of America."
International Council of Shopping Centers, The Scope of the
Shopping Center Industry in the United States, 1992-1993, ix
(1992).
Industry experts agree. One recent study asserted "[t]he
suburban victory in the regional retail war was epitomized by
the enclosed regional mall. . . . [Regional malls] serve as
the new 'Main Streets' of the region -- the dominant form of
general merchandise retailing." James W. Hughes & George
Sternlieb, Rutgers Regional Report Volume III: Retailing and
Regional Malls 71 (1991). Beyond that, one expert maintains
that shopping centers have "evolved beyond the strictly retail
stage to become a public square where people gather[]; it is
often the only large contained place in a suburb and it
provides a place for exhibitions that no other space can
offer." Specialty Malls Return to the Public Square Image,
Shopping Center World, Nov. 1985, at 104.
Most legal commentators also have endorsed the view that
shopping centers are the functional equivalent of yesterday's
downtown business district. E.g., James M. McCauley, Comment,
Transforming the Privately Owned Shopping Center into a Public
Forum: PruneYard Shopping Center v. Robins,
15 U. Rich. L.
Rev. 699, 721 (1981) ("[P]rivately-owned shopping centers are
supplanting those traditional public business districts where
free speech once flourished."); Note, Private Abridgment of
Speech and the State Constitutions, supra, 90 Yale L.J. at 168
("[T]he privately held shopping center now serves as the
public trading area for much of metropolitan America.").
Statisticians and commentators, however, are not needed:
a walk through downtown and a drive through the suburbs tells
the whole story. And those of us who have lived through this
transformation know it as an indisputable fact of life, and
that fact does not escape the notice of this Court.
We shall briefly summarize the lengthy history of the law of free speech that underlies this case. The relevant historical starting point is Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946). In Marsh, the United States Supreme Court held that the First Amendment's guarantee of free speech was violated when the private owners of a company town prevented distribution of literature in its downtown business district. Finding that the company town had all the attributes of a municipality, the Court held that the private owner's action was "state action" for constitutional free speech purposes. In a democracy, the Court recognized, citizens "must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed
their information must be uncensored." Id. at 508, 66 S. Ct.
at 280, 90 L. Ed. at 270. The paramount right of the citizens
to be informed overrode the rights of the property owners in
the constitutional balance. Id. at 509, 66 S. Ct. at 280, 90
L. Ed. at 270.
The question whether citizens may exercise a right of
free speech at privately-owned shopping centers without
permission of the owners has been litigated extensively. The
first time the question came before the Supreme Court, the
Court upheld the right of free speech at shopping centers.
Amalgamated Food Employees Union Local 590 v. Logan Valley
Plaza,
391 U.S. 308, 325,
88 S. Ct. 1601, 1612,
20 L. Ed.2d 603, 616 (1968). Clearly relying on Marsh, the majority in
Logan Valley ruled that shopping centers are the functional
equivalent of downtown business districts and that the private
owners could therefore not interfere with the exercise of the
right of free speech. For First Amendment purposes that
interference constituted "state action." The Court implied,
but did not hold, that an unrestricted free speech right
existed. Logan Valley was thereafter "limited" by Lloyd Corp.
v. Tanner,
407 U.S. 551,
92 S. Ct. 2219,
33 L. Ed.2d 131
(1972), which held that war protesters had no right of free
speech at shopping centers. The Court distinguished Logan
Valley, confining it to the situation in which the speech was
related to shopping center activities -- a labor dispute
involving one of the center's tenants -- and in which no
alternative was available for the expression of views, id. at
563, 92 S. Ct. at 2226, 33 L. Ed.
2d at 139-40 -- such as the
public sidewalks that surrounded the center in Lloyd.See footnote 10
The Court in Hudgens v. NLRB,
424 U.S. 507, 517-18,
96 S.
Ct. 1029, 1035-36,
47 L. Ed.2d 196, 205-06 (1976), reviewing
both Logan Valley and Lloyd, concluded not only that the
reasoning of the latter amounted to a total rejection of the
former, but that even the limited right of free speech
(namely, that relating to shopping center activities) approved
in Lloyd did not exist. That view was reaffirmed in PruneYard
Shopping Center v. Robins,
447 U.S. 74, 81,
100 S. Ct. 2035,
2040-41,
64 L. Ed.2d 741, 751-52 (1980). Those cases,
Hudgens and Pruneyard, essentially held that the First
Amendment right found in Marsh was limited to a privately
owned factory town, an entity that performed substantially all
of the functions of government. Its actions were therefore
akin to "state action," thereby triggering First Amendment
protection. Not so the actions of shopping centers, whose
functional equivalence to a town was limited to the downtown
business district.
It is now clear that the Federal Constitution affords no
general right to free speech in privately-owned shopping
centers, and most State courts facing the issue have ruled the
same way when State constitutional rights have been asserted.
Fiesta Mall Venture v. Mecham Recall Comm.,
767 P.2d 719
(Ariz. Ct. App. 1989); Cologne v. Westfarms Assocs.,
469 A.2d 1201 (Conn. 1984); Citizens for Ethical Gov't v. Gwinnet Place
Assoc.,
392 S.E.2d 8 (Ga. 1990); Woodland v. Michigan Citizens
Lobby,
378 N.W.2d 337 (Mich. 1985); SHAD Alliance v. Smith
Haven Mall,
488 N.E.2d 1211 (N.Y. 1985); State v. Felmet,
273 S.E.2d 708 (N.C. 1981); Eastwood Mall v. Slanco,
626 N.E.2d 59
(Ohio 1994); Western Pa. Socialist Workers 1982 Campaign v.
Connecticut Gen. Life Ins. Co.,
515 A.2d 1331 (Pa. 1986);
Charleston Joint Venture v. McPherson,
417 S.E.2d 544 (S.C.
1992); Southcenter Joint Venture v. National Democratic Policy
Comm.,
780 P.2d 1282 (Wash. 1989); Jacobs v. Major,
407 N.W.2d 832 (Wis. 1987). In most of those decisions, the courts
analyzed their state constitutions and concluded that their
free speech provisions protected their citizens only against
state action. E.g., SHAD Alliance, supra,
488 N.E.2d 1211;
Slanco, supra,
626 N.E.2d 59; Southcenter Joint Venture,
supra,
780 P.2d 1282. Others relied on federal constitutional
doctrine without independently analyzing their state
constitutions. E.g., Citizens for Ethical Gov't, supra,
392 S.E.2d 8; Felmet, supra,
273 S.E.2d 708.
California, Oregon, Massachusetts, Colorado, and
Washington, however, have held that their citizens have a
right to engage in certain types of expressive conduct at
privately-owned malls. Of those five, only California has
held that its free speech clause protects citizens from
private action as well as state action and grants issue-oriented free speech rights at a regional shopping center.
Robins v. PruneYard Shopping Ctr.,
592 P.2d 341, 347 (Cal.
1979), aff'd,
447 U.S. 74,
100 S. Ct. 2035,
64 L. Ed.2d 741
(1980). Massachusetts and Oregon relied on clauses other than
their free speech clauses. Batchelder v. Allied Stores Int'l,
445 N.E.2d 590, 593 (Mass. 1983) (relying on state
constitution's "free-and-equal elections" provision); Lloyd
Corp. v. Whiffen,
849 P.2d 446, 453-54 (Or. 1993) (Whiffen II)
(relying on state constitution's initiative and referendum
provision and declining to address whether free speech clause
was also source of right to collect signatures at mall).
Colorado relied on its constitution's free speech provision to
hold that political activists had a constitutional right to
distribute literature at a privately-owned mall. Bock v.
Westminster Mall Co.,
819 P.2d 55 (Colo. 1991). The Bock
court, however, did not dispense with a state action
requirement for its free speech provision; rather, the court
found that the mall that sought to prohibit the distribution
of literature was a state actor. Id. at 62.
The Washington Supreme Court has done an about-face on
this issue. In Alderwood Associates v. Washington
Environmental Council,
635 P.2d 108 (1981), a majority of the
court reversed an injunction prohibiting a group from
collecting signatures at a mall, but only a four-justice
plurality concluded that the state constitution's free speech
clause did not have a state action requirement. In
Southcenter Joint Venture, supra,
780 P.2d 1282, the court,
again deeply divided, rejected the plurality position in
Alderwood and held that the state's free speech provision does
not protect speech on private property. However, the
remainder of the holding in Alderwood -- that there was a
right to solicit signatures on private property under the
state constitution's initiative provision -- was not
disturbed. Id. at 1290.
Pennsylvania's position on the free speech/state action
issue appeared, at one time, to accord with ours in Schmid.
In Commonwealth v. Tate,
432 A.2d 1382 (1981), the
Pennsylvania Supreme Court held that the state constitution's
free speech provision prohibited a private university from
preventing people from leafletting outside a university
building in which a public symposium was being held. The
court specifically held that "the state may reasonably
restrict the right to possess and use property in the
interests of freedom of speech, assembly, and petition." Id.
at 1390. Thus, the court seems to have held that there is no
state action requirement in its free speech provision. In
Western Pennsylvania Socialist Workers 1982 Campaign, supra,
515 A.2d 1331, however, the same court expressly stated that
the state's free speech clause provided protection only from
state action, id. at 1335, and held that there is no
constitutional right to collect signatures in a privately-owned shopping mall. Id. at 1339. While not overruling its
previous Tate decision, the Court distinguished it by
concluding that the private college in Tate had turned itself
into a public forum. Id. at 1337.
From these cases we learn that the Federal Constitution
does not prevent private owners from prohibiting free speech
leafletting at their shopping centers because the owners'
conduct does not amount to "state action"; that practically
every state, when its constitutional free speech provisions
have been asserted, has ruled the same way, again on the basis
of a legal conclusion that state action was required. We are
not out-of-step, however, for as detailed above, every state
that has found certain of its constitutional free-speech
related provisions effective regardless of "state action" has
ruled that shopping center owners cannot prohibit that free
speech. There have been four such rulings: California
(general free speech provision), Massachusetts (free and equal
election provision), Oregon (initiative and referendum
provision), and Washington (initiative provision). Put
differently, no state with a constitutional free-speech-related provision unencumbered by any "state action"
requirement has allowed shopping centers to prohibit that
speech on their premises. Colorado is apparently the only
state that found its constitutional "state action" requirement
satisfied in the shopping center context, and ruled on that
ground that the owners' denial was unconstitutional and
required that leafletting be permitted.
In New Jersey, we have once before discussed the application of our State constitutional right of free speech to private conduct. In State v. Schmid, 84 N.J. 535 (1980), appeal dismissed sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed.2d 855 (1982), we held that the right conferred by the State Constitution was secure not only from State interference but -- under certain conditions -- from the interference of an owner of private property even when exercised on that private property. Id. at 559. Specifically, we held that Schmid, though lacking permission from Princeton University, had the right to enter
the campus, distribute leaflets, and sell political materials.
We ruled that the right of free speech could be exercised on
the campus subject to the University's reasonable regulations.
We thus held that Article I, paragraph 6 of our State
Constitution granted substantive free speech rights, and that
unlike the First Amendment, those rights were not limited to
protection from government interference. In effect, we found
that the reach of our constitutional provision was
affirmative. Precedent, text, structure, and history all
compel the conclusion that the New Jersey Constitution's right
of free speech is broader than the right against governmental
abridgement of speech found in the First Amendment. Our
holding in Schmid relied on all of these factors, id. at 557-60, presaging the criteria of later cases used to determine
whether the scope of state constitutional provisions exceeded
those of cognate federal provisions. E.g., State v. Hunt,
91 N.J. 338, 358-68 (1982) (Handler, J., concurring) (explaining
principles for interpreting State constitutional provisions).
In this case, we continue to explore the extent of our
State Constitutional right of free speech. We reach the same
conclusion we did in Schmid: the State right of free speech
is protected not only from abridgement by government, but also
from unreasonably restrictive and oppressive conduct by
private entities. Schmid, supra, 84 N.J. at 560. Applying
the standard developed in Schmid to this very different case,
we decide today that defendants' rules prohibiting leafletting
violate plaintiff's free speech rights.
We found in Schmid that Princeton University, in pursuit of its own educational mission, had invited the public to participate in the intellectual life of the University in various ways, including participation in discussions of current and controversial issues. The University not only underlined its interest in free speech in various statements of policy, but in the imperative of extending participation beyond the student body so that both different views and groups would be heard. We found that this invitation included participation in various formal meetings of committees and clubs, invitations to both specific individuals and groups outside of the University body, and on occasion general invitations to the public. We held that all of these factors had the effect of opening up Princeton's property to a limited public use and that the activity sought to be carried on by Schmid was consonant with that use. Schmid, supra, 84 N.J. at 564-66.
The balancing of the various factors of the Schmid standard guided our determination. We also considered alternative channels available to Schmid for the communication of his ideas, not to determine the existence of a right, but
rather to evaluate the extent to which Princeton could
regulate that right. Given all of those premises, we
concluded that Schmid's entry on the University's lands was
not a trespass and reversed his conviction, based on our
conclusion that Schmid had the right of free speech on
Princeton's property. We held further that Princeton's
attempts to regulate and condition speech, as those
regulations and conditions then existed, were invalid because
they were applied without standards. But we affirmed the
underlying right of Princeton to adopt reasonable regulations
concerning the time, manner, and place of such speech. Id. at
567-68.
Schmid set forth "several elements" to be considered in
determining the existence and extent of the State free speech
right on privately-owned property. The three factors
mentioned in that opinion as the "relevant considerations,"
id. at 563, have been the focus of the argument before us. As
we noted in that case:
This standard must take into account (1) the nature, purposes, and primary use of such private property, generally, its "normal" use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property. This is a multi-faceted test which must be applied to ascertain whether in a given case owners of private property may be required to permit, subject to suitable restrictions, the reasonable exercise by
individuals of the constitutional freedoms of speech
and assembly.
The balancing of the three factors and the ultimate
balance between expressional rights and private property
rights was a matter of concern in Justice Schreiber's
concurrence in Schmid. Noting uncertainty about whether the
majority based its constitutional holding on "a balancing
process" or on a "dedication to the public of its property,"
id. at 576 & n.1, the concurrence concluded that the
dedication of private property "for a public use involving
public discussion," id. at 580, was essential to justify our
holding. We need not, however, examine what a dedication to
the public for public discussion really means, for there is no
property more thoroughly "dedicated" to public use than these
regional and community shopping centers, a public use so
pervasive that its all-embracing invitation to the public
necessarily includes the implied invitation for plaintiff's
leafletting.
In this case, the trial court held that the Schmid
standard was not satisfied and, therefore, that the plaintiff
had no constitutional right to leaflet at defendants'
premises. New Jersey Coalition Against War in the Middle East
v. J.M.B. Realty Corp.,
266 N.J. Super. 195 (Ch. Div. 1993).
Specifically, after analyzing the proofs, it found that the
common areas were not open to the public generally, but rather
that "the public's invitation to each of the defendant malls
is for the purpose of the owners' and tenants' business and
does not extend to the activities of leafletting or the
distribution of literature." Id. at 203. Furthermore, it
found that the plaintiff failed to prove that the proposed
activity was not discordant with the "uses to which these
shopping malls are dedicated." Id. at 204. If one focuses
only on the owners' "purpose" and "dedication," these findings
are literally correct.
Given those findings, the trial court and the Appellate
Division concluded that the requirements of Schmid were not
met. They presumably believed that it would be inappropriate
to further probe the possible constitutional implications of
Schmid when applied to this very different case in a novel,
debatable, and most important area of constitutional law. The
tradition of our judiciary under those circumstances is
generally to leave c