The Law of the Mall

No, I’m not talking about Paul Blart.  I’m talking about the rights of citizens to use the mall as a public space to advocate for political issues.  Recall petitions for example.

This “Black Friday,” shoppers may see more than just Salvation Army bell ringers at the door to their favorite stores, they may encounter recall petitioners collecting signatures.

Wisconsin Democrats are planning to collect signatures in the Milwaukee area at several stores, including:

• Southridge Mall in Greendale
• Best Buy in Greenfield
• Kmart in Hales Corners
• Stores throughout West Allis
• Bayshore Mall in Glendale
• Toys R Us in Brookfield

Recall supporters won’t have any luck at Southridge Mall, said Mary Mokwa, manager of the mall.

Collecting signatures is a form of soliciting, Mokwa said, and the mall allows no soliciting inside of the building or in its parking lot. The closest recall supporters could get to the shopping center are the public sidewalks surrounding the Southridge property, she said.

So what exactly are the rules for gathering signatures on private property?  Or any other political speech on private property?  How much control do property owners have over semi-public spaces like malls?  Now I’m not a lawyer.  But I’m quite curious about these laws and these rulings because they are a fundamental piece of our democracy and our ability to express ourselves.  I welcome comments from lawyers with familiarity with the history of these cases.

In 1968, the Supreme Court of the United States ruled that a shopping mall was the modern equivalent of the public square, the ancient Roman Forum reborn. It had become the “normal municipal business district.” The court determined that the mall owner was not allowed to “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 then in 1972 the Court backed away from this decision declaring 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) However, in keeping with the 1968 case, they did affirm that the more open a private space is to diverse use, the more circumscribed the property owners right to restrict the use of the space becomes.

In 1980, the SCOTUS finally decided to leave the question of access to malls up to the states. The court held that the federal Constitution affords no general right to free speech in privately-owned shopping centers but that since state constitutions have their own free speech clauses, the states are allowed to determine the rules for themselves. (PruneYard Shopping Center v. Robins)

State constitutions are often interpreted to provide greater protection for expression, and therefore newsgathering, than the U.S. Constitution. States may therefore provide the public greater protection for free expression, including political speech, in a shopping mall, even at the expense of the owner’s property interest. Since the high court’s decision in PruneYard, a number of state courts have ruled, both affirmatively and negatively on the rights of citizens to exercise their free speech rights on private property even if run counter to the interests of the mall owner.

So where does Wisconsin fit into this picture? Let’s look at California where the rights of citizens to petition for redress in semi-private spaces was affirmed by that state’s Supreme Court. What does the California constitution’s free speech protection clause say?

California’s Free Speech Clause: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

And what about Wisconsin?

Wisconsin’s free speech clause: Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.

These clauses are nearly identical.  Surely this means that Wisconsin would follow California’s lead in the expansion of the freedom of speech.

Unfortunately for political advocates and recall signature collectors, Wisconsin’s courts have decided that the rights of private property owners trumps the rights of free speech. In Jacobs v. Major, 407 N.W.2d 832 (Wis. 1987), the court found that in the California PruneYard ruling

the majority opinion relied heavily on another provision of the California Constitution, Art. I, sec. 3 which provides that “people have the right to … petition government for redress of grievances ….” This provision was held vital to a basic process in the state’s constitutional scheme—direct initiation of change by the citizenry through initiative, referendum, and recall. (Cal. Const. Art. II, secs. 8, 9 and 13.) The court drew a distinction between a mall and other privately owned property. Therefore, the constitutional language was interpreted to have different meaning and effect depending on the property invaded by free speech to petition the government.

The Abrahamson court declined to find for speech over property rights in this case.  That’s not to say that courts cannot change their mind, but it does affirm that the mall owners have the right to control speech in their private “public” spaces.

So as the GOP continue to privatize our government services, what becomes of our right of free speech?  If we privatize the DMV, can you no longer collect recall signatures at the new private DMV?  Will we ensure that the rights of citizens to petition for redress endure in this new era of public-private “partnership” now that Wisconsin is “open for business?”

Ironically, this expanding ownership of our public services could, in the end, reduce our civil rights.