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Original WP 5.1 Version
This case can also be found at 138 N.J. 326.
(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
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
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
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
J.M.B. REALTY CORPORATION,
CHERRY HILL CENTER, INC., d/b/a
Argued March 14, 1994 -- Decided December 20, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
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.
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 &
Mark A. Steinberg submitted a letter in lieu
of brief on behalf of respondent Equity
Properties and Development Co., Inc., d/b/a
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,
Bernard A. Kuttner submitted a brief on
behalf of amici curiae, United Farm Workers
of America, AFL-CIO, and New Jersey Consumer
The opinion of the Court was delivered by
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.
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).
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.
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.
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.
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.
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
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).]
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.
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.
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.
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.
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.
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).
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
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).
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
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.
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.").
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
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.").
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.
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
functional equivalence to a town was limited to the downtown
constitutions. E.g., Citizens for Ethical Gov't, supra,
392 S.E.2d 8; Felmet, supra,
273 S.E.2d 708.
found that the mall that sought to prohibit the distribution
of literature was a state actor. Id. at 62.
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.
(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).
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
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
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
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.
restricted to the subjective "purpose" of defendants' uses,
and certainly not limited to whether defendants extended an
explicit invitation to plaintiff to speak. The issue is
whether defendants' actual conduct, the multitude of uses they
permitted and encouraged, including expressive uses, amounted
to an implied invitation and, if so, the nature and extent of
that invitation. The functional role of the standard and its
three elements is to measure the strength of the plaintiff's
claim of expressional freedom and the strength of the private
property owners' claim of a right to exclude such
We now examine the standard and determine the resulting balance in this case between free speech and private property rights. We find that each of the elements of the standard and
their ultimate balance support the conclusion that leafletting
is constitutionally required to be permitted.
rooms, and almost always a community table or booth where
various groups can promote causes and different activities
taking place within their local area.
The term "expressive uses" is not intended necessarily to
suggest free speech as that phrase is conventionally used, or
some commitment of the centers to free speech simply because
they have invited these uses. They are generally not the same
expressive uses encouraged by Princeton University, uses that
went to the core of free speech. But almost all are non-retail, non-commercial activities that most likely involve
some element of speech, and some involve causes and issues.
There are events to which the entire public was invited, free
of charge. Each one, at some point in the event, in some way,
presumably projected some message, even if mostly non-controversial.
the people. Not only are there the multiple uses ordinarily
found in a downtown business district, and the invitation
implied from that alone, but others that may not be found in
the downtown business district, all explicitly sponsored by
the shopping centers, the sum total amounting to the broadest,
indefinable, almost limitless invitation. Speech is included;
it is certainly not the goal, but it is inevitably found
there, even if in modest portions, along with its inevitable
messages, many deemed by most people -- but not all -- as non-controversial because they agree with the message. These
uses, combined with the vast open spaces, the benches, the
park-like settings, together carry the message that this is
the place to be -- this is your community, where you can rest,
relax, talk, listen, be entertained and be educated. The
multiplicity of uses reflects the intention to bring the
entire community -- its citizens and its activities -- into
the center. The uses and invitation, in effect, reconstitute
the community, conveniently, under one roof.
Our shopping center is an important part of this community. We invite members of the community to shop at Woodbridge Center and to take advantage of
the numerous amenities we offer. We also make our
Community Booth available to community and political
organization of [sic] citizens' groups for the
purpose of distributing circulars, petitions and
other literature pertaining to their activities and
for communication with the public regarding
community affairs, subject to our rules and
regulations. We have provided a Community Booth to
be used for this purpose.
Your presence, whether as a shopper or as a purveyor
of community or political information, is welcomed;
provided that you recognize and respect our right to
maintain our center as clean, neat orderly, pleasant
and harassment free environment for everyone.
Our rules and registration form must be submitted no
less than seven days prior to the desired date.
Subject to availability, activities will be
calendared on a first-come, first-served basis.
[Plaintiff's Appendix, 149a (first and
second emphasis added).]
The centers, moreover, have apparently not excluded the
partisan political speech often found in voter registration
drives, most of which were sponsored by party organizations or
candidates, and especially found in the conduct of the
candidates (and presumably their aides) as they walk through
although they deny the existence of a constitutional right,
their sole practical issue with plaintiff concerns the extent
of regulation, plaintiff claiming it substantially and
unnecessarily restrains the effectiveness of its leafletting,
and defendants claiming it is essential to protect their
regardless of their clear subjective profit motive -- go far
beyond buying goods; they include not only expressive uses but
so many different uses without any commonality other than the
mix of uses that define a community, and in terms of the
centers' motivation, almost anything that will bring people to
the centers. This is the new, the improved, the more
attractive downtown business district -- the new community -
and no use is more closely associated with the old downtown
than leafletting. Defendants have taken that old downtown
away from its former home and moved all of it, except free
speech, to the suburbs. In a country where free speech found
its home in the downtown business district, these centers can
no more avoid speech than a playground avoid children, a
library its readers, or a park its strollers.
leafletting, and the burden should fall on those who claim it
is not. More importantly, we find that the more than two
hundred years of compatibility between free speech and the
downtown business district is proof enough of its
compatibility with these shopping centers. The downtown
business districts at one time thrived: no one has ever
contended that free speech and leafletting hurt them. The
extent of their downfall has had nothing to do with free
speech and leafletting. This record does not support the
proposition that one dollar's worth of business will disappear
because of plaintiff's leafletting even though some shoppers
and non-shoppers may not like it. Furthermore, defendants'
contention that leafletting on controversial issues is
discordant and damaging to their purposes is inconsistent with
the permission to leaflet given to plaintiff in this case by
four of these centers.
of that activity, and the public and private uses of the
property -- points in the direction of the existence of the
We decide this case not only on the basis of the
three-pronged test in Schmid, but also by the general balancing of expressional rights and private property rights. Schmid, supra, 84 N.J. at 560-62. The standard and its elements are specifically designed with that balancing in mind. A more general analysis of the balance provides a further test of the correctness of our determination.
The essence of the balance is fairly described by Justice
Handler in Schmid:
[P]rivate property does not "lose its private
character merely because the public is generally
invited to use it for designated purposes."
Nevertheless, as private property becomes, on a
sliding scale, committed either more or less to
public use and enjoyment, there is actuated, in
effect, a counterbalancing between expressional and
[Id. at 561 (quoting Lloyd Corp. v. Tanner,
407 U.S. 551, 569,
92 S. Ct. 2219, 2229,
33 L. Ed.2d 131, 143 (1972)) (citations omitted).]
Or, as stated in Marsh, "[t]he 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."
Marsh v. Alabama,
326 U.S. 501, 506,
66 S. Ct. 276, 278,
Ed. 265, 268 (1946), cited with approval in Amalgamated Food
Employees Union Local 590 v. Logan Valley Plaza,
391 U.S. 308,
88 S. Ct. 1601, 1612,
20 L. Ed.2d 603, 616 (1968).
intentionally transformed their property into a public square
or market, a public gathering place, a downtown business
district, a community; they have told this public in every way
possible that the property is theirs, to come to, to visit, to
do what they please, and hopefully to shop and spend; they
have done so in many ways, but mostly through the practically
unlimited permitted public uses found and encouraged on their
property. The sliding scale cannot slide any farther in the
direction of public use and diminished private property
leafletting, and subject to the owners' broad power to
regulate, that interference, if any, will be negligible.
No such sensitivity exists in this case; there is no need
to carefully calibrate the risk of damaging the mission of
these centers, for the risk is practically non-existent. More
than that, the constitutional obligation in this case arises
from what we have come to recognize as the essential nature of
regional shopping centers -- their all-inclusive uses and
their corresponding all-embracing implied invitation to the
public. For regional shopping centers, the implied
expressional invitation is part of their nature, solidly
embedded in their inescapable mission as the intentional
successors to downtown business districts and their basic
profit-making purpose. We foresee no likely change in that
essential nature that would affect the elements of the
standard or the ultimate balance between free speech and
grounds, we draw on those sources mentioned in Hunt, supra, 91
N.J. at 363-68 (Handler, J., concurring), including our common
law. It lays a foundation that would vindicate the exercise
of speech and assembly rights in this setting.
while society will protect the owner in his permissible interests in land, yet ". . . [s]uch an owner must expect to find the absoluteness of his property rights curtailed by the organs of society . . . . The current balance between individualism and dominance of the social interest depends not only upon political and
social ideologies, but also upon the physical and social facts of the time and place under discussion."
[Id. at 305 (quoting 5 Powell on Real
Property (Patrick J. Rohan, ed., 1970)).]
We also find as support for our conclusions an enduring
principle recognized in Marsh, a principle that remains
pertinent for our purposes even though it has not been
accepted in this context as a matter of federal constitutional
doctrine. The principle of that case (and Logan) is that the
constitutional right of free speech cannot be determined by
title to property alone. Thus, where private ownership of
property that is the functional counterpart of the downtown
business district has effectively monopolized significant
opportunities for free speech, the owners cannot eradicate
those opportunities by prohibiting it.See footnote 12
Like many constitutional determinations, our decision today applies a constitutional provision written many years ago to a society changed in ways that could not have been foreseen. One of those changes is relatively modern: the vastly increased capability to achieve mass communication, primarily, for the moment at least, to do so through television. This emergence of television as the preeminent medium for mass communication provides no justification to deny plaintiff this constitutional right. Most fundamentally, the general right of free speech through one means has never depended on a lack of any other means; radio never diminished the right of free speech at downtown business districts.
Furthermore, television is not available as a practical matter to these issue-oriented groups. In the fourth quarter of 1993 the average cost of a national thirty-second television commercial ranged from $23,000 during daytime hours
to $155,000 during prime-time hours. Adweek, Marketer's Guide
to Media, Fall/Winter 1993-1994, at 27 (1993). While much
lower rates for smaller audiences are available, issue-oriented groups simply cannot afford an effective television
campaign. The paucity of issues advertised on television
proves it. The viewer will see only those issue-oriented
groups with the most substantial membership and funds. There
are very few.
are a poorer nation when these small groups are silenced. The
effect of the dominance of television has been to increase the
need of these issue-oriented groups to reach the public
through other means, and their only other practicable means is
the leafletting they seek here. Justice Marshall knew it, and
said it well:
For many persons who do not have easy access to
television, radio, the major newspapers, and the
other forms of mass media, the only way they can
express themselves to a broad range of citizens on
issues of general public concern is to picket, or to
handbill, or to utilize other free or relatively
inexpensive means of communication. The only hope
that these people have to be able to communicate
effectively is to be permitted to speak in those
areas in which most of their fellow citizens can be
found. One such area is the business district of a
city or town or its functional equivalent. And this
is why respondents have a tremendous need to express
themselves within Lloyd's center [a regional
[Lloyd Corp. v. Tanner,
407 U.S. 551, 580-81,
92 S. Ct. 2219, 2234-35,
33 L. Ed 2d
131, 149-50 (1972) (Marshall, J.,
If constitutional provisions of this magnitude should be interpreted in light of a changed society, and we believe they should, the most important change is the emergence of these centers as the competitors of the downtown business district and to a great extent as the successors to the downtown business district. The significance of the historical path of
free speech is unmistakable and compelling: the parks, the
squares, and the streets, traditionally the home of free
speech, were succeeded by the downtown business districts,
often including those areas, the downtown business districts
where that free speech followed. Those districts have now
been substantially displaced by these centers. If our State
constitutional right of free speech has any substance, it must
continue to follow that historic path. It cannot stop at the
downtown business district that has become less and less
effective as a public forum. It cannot be silenced "as the
traditional realm of grassroots political activity withers
away." Curtis J. Berger, Pruneyard Revisited: Political
Activity on Private Lands,
66 N.Y.U. L. Rev. 633, 661 (1991).
without doubt our Constitution would prohibit it, and in New
Jersey when private entities do the same thing at these
centers, our Constitution prohibits that too. We cannot
determine precisely the extent of damage to free speech that
will call forth our constitutional provision to prevent it,
but precision is not required in this case: the damage is
would require over 300,000 signatures for a constitutional
initiative and over 200,000 for a statutory initiative.See footnote 15
Obviously, these centers are the most likely place for
realizing the goals of such laws, and perhaps the only
practical place. The required number of petition signers
cannot be found elsewhere. These are free speech rights of
the highest order, the recall provision already approved by
the people. It is unthinkable that the free speech provision
of our State Constitution will not protect them at these
diminish in importance as society changed, to be dependent on
the unrelated accidents of economic transformation, or to be
silenced because of a new way of doing business.
Two of the defendants contend that granting plaintiff 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. U.S. Const. amends. I, V; N.J. Const. art. I, ¶¶ 6, 20. Each of those contentions, insofar as the Federal Constitution is concerned, was rejected in PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-88, 100 S. Ct. 2035, 2041-44, 64 L. Ed.2d 741, 752-56 (1980). Their assertion here includes the same contentions under New Jersey's Constitution, which we now reject for reasons similar to those expressed by the United States Supreme Court. Other jurisdictions that have addressed this issue have similarly relied on the federal PruneYard decision. Lloyd Corp. v. Whiffen, 849 P.2d 446, 449-50 (Or. 1992) (Whiffen II); Bock v. Westminster Mall Co., 819 P.2d 55, 62 (Colo. 1991). Insofar as invasion of private property rights is concerned, our decision in State v. Shack, 58 N.J. 297, 303-08 (1971), is similarly dispositive. We would add to the United States Supreme Court's response to the
private property owners' free speech concerns (concerns
underlined in Justice Powell's concurrence in PruneYard,
supra, 447 U.S. at 96-101, 100 S. Ct. at 2048-51, 64 L. Ed.
at 761-65) that private property owners who have so
transformed the life of society for their profit (and in the
process, so diminished its free speech) must be held to have
relinquished a part of their right of free speech. They have
relinquished that part which they would now use to defeat the
real and substantial need of society for free speech at their
centers; they should not be permitted to claim a
theoretically-important right of silence from the multitudes
they have invited. No matter how it is analyzed, the right
claimed by the property owners is minimal compared to that
which their claim would significantly diminish.
to hear them and learn from them. What is involved here is
the fundamental speech right of a free society. The flow of
free speech in today's society is too important to be cut off
simply to enhance the shopping ambience in our state's
Our holding today applies to all regional shopping
centers. That holding is based on their essential nature.See footnote 16
The mammoth size of these regional centers, the proliferation
of uses, the all-embracing quality of the implied invitation,
and the compatibility of free speech with those uses: the
inevitable presence and coexistence of all of those factors
more than satisfy the three elements of the Schmid standard.
Furthermore, these regional shopping centers are, in all
significant respects, the functional equivalent of a downtown
business district, a fact that provides further support for
our holding. These are the essential places for the
preservation of the free speech that nourishes society and was
found in downtown business districts when they flourished.
activities and causes; expressive uses of various kinds are
common. We emphasize, however, that these differences in the
degree of public activity are not material and will not exempt
a regional mall from the obligation to permit free speech
speech right, the regional shopping center, is clearly and
easily discernible and distinguishable from all others in its
constitutional satisfaction of the standard of Schmid; it is
distinguishable in its physical size, its multitude of uses,
its layout, and its combination of characteristics that
together compel the imposition of the constitutional
Their implied invitation is limited since the uses at those
locations do not approach the multitude of uses found at
regional shopping centers. Furthermore, the limited activity
at such locations is such that the exercise of free speech
will generate greater interference with their normal use. The
common characteristic of defendants' list is crowds, but it
takes much more than crowds to trigger the constitutional
fundamentally so discordant with the purposes and uses of
those centers as to disqualify it from constitutional
protection. It is generally discordant: the owners and
managers of the center, as well as the various tenants,
carefully plan their merchandising strategy, their advertising
programs, and are entitled to reap the rewards of their
efforts without commercial interference, even well-intentioned
commercial interference, from others. At a somewhat different
level, the commercial free speech could obviously be directly
in conflict with the centers' activities, uses, and success,
the most obvious example being leafletting seeking to persuade
shoppers and non-shoppers to go elsewhere. We will not
require these centers to carefully review every application
for commercial free speech and put them to the test of
justifying its exclusion under some balance. It is obviously
a most serious intrusion on the property interests of these
owners; it does not satisfy the standard of Schmid; it does
not have State constitutional protection.See footnote 17
As for the manner of speech, our ruling is confined to leafletting and associated free speech: the speech that normally and necessarily accompanies leafletting. Plaintiff has sought no more. It does not include bullhorns, megaphones, or even a soapbox; it does not include placards, pickets, parades, and demonstrations; it does not include anything other than normal speech and then only such as is necessary to the effectiveness of the leafletting. The free speech associated with leafletting, handbilling, and pamphleteering, as commonly understood, is only that which is needed to attract the attention of passersby -- in a normal voice -- to the cause and to the fact that leaflets are available, without pressure, harassment, following, pestering, of any kind. Additionally, the sale of literature and the solicitation of funds on the spot (as distinguished from appeals found in the leaflets themselves) are not covered by the protection. In that connection, we are in accord with the reasoning of decisions in other jurisdictions. Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282, 1306 (Wash. 1989) (Utter, J., concurring) ("The nature of this speech activity [soliciting memberships and contributions] competed directly with the property interests
of the mall owners and tenants -- who were in the retail
business."); H-CHH Assoc. v. Citizens For Representative
238 Cal. Rptr. 841, 859 (Cal. Ct. App. 1987), cert.
485 U.S. 971,
108 S. Ct. 99 L. Ed.2d 446 (1988) ("Any
activity seeking to solicit political contributions
necessarily interferes with that function by competing with
the merchant tenants for the funds of [mall] patrons.").
we have permitted -- leafletting only, no speeches, no parades, no demonstrations -- is the least intrusive form of free speech and the easiest to control. The experience elsewhere proves the ability of those centers to absorb such speech without harm. The rare instances of disturbance resulted from circumstances most unlikely to occur here.See footnote 18 Obviously, we cannot guarantee that disturbances will not occur as a result of our decision. Indeed, we could not guarantee freedom from such disturbances even in the absence of a right to leaflet. However, the slim possibility of disruption is the price we all pay as citizens of this state;
the danger that some will abuse their rights is a necessary
result of our constitutional commitment to free speech.
leafletting is confined to some limited space, we assume that
in addition to normal voice contact with
always a simple matter. In order to give the centers time to
address these and other matters, our judgment will not take
effect until sixty days from the date of this decision.
The judgment of the Appellate Division is reversed;
Justices Handler, O'Hern, and Stein join in this 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
J.M.B. REALTY CORPORATION,
CHERRY HILL CENTER, INC., d/b/a
GARIBALDI, J., dissenting.
Today the Court holds that the New Jersey Constitution requires that owners of privately-owned-and-operated shopping malls who invite the public onto their property for commercial purposes must allow the public free access to that property to
engage in unrestricted expressional activities, including,
through the distribution of leaflets and petitions to shoppers,
the promotion of various political or social views. To reach
that conclusion, the majority distorts the test announced in
State v. Schmid,
84 N.J. 535, 563 (1980); 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, developed after an extensive eleven-day trial; and
instead relies primarily on old theories that the United States
Supreme Court and most other state courts long ago discarded.
The United States Supreme Court has held that the First Amendment allows the owners of private shopping malls to bar the distribution of political literature on mall property. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed.2d 741 (1980); Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed.2d 131 (1972). However, the Supreme Court has held that a state's constitution may furnish an independent basis that surpasses the guarantees of the federal constitution in protecting individual rights of free expression and assembly. PruneYard, supra, 447 U.S. at 81, 100 S. Ct. at 2039-40, 64 L. Ed. 2d at 752. The vast majority of states do not require that privately-owned shopping malls grant free access for expressional activity on their property. Ante at ___ (slip op. at 29).
Four provisions of Article I of the New Jersey Constitution are at issue: Paragraph l, which concerns the unalienable right to acquire, possess, and protect property; Paragraph 20, which provides that individual persons or private corporations cannot take private property for public use without just compensation; Paragraph 6, which gives the right to speak, write, and publish freely; and Paragraph 18, which guarantees the right to assemble. We addressed the conflict between those provisions in Schmid,
84 N.J. 535. However, breaking with our decision in that
case, the majority engages in no balancing of those competing
constitutional provisions; instead, the majority relies on only
the free-speech and assembly provisions, ante at ___ (slip op. at
3), ignoring completely the private-property provisions. In so
doing, it turns its back on our holding in Schmid.
Using a test essentially the same as Schmid, the
Pennsylvania Supreme Court established, in Commonwealth v. Tate,
432 A.2d 1382 (1981), "a limiting rationale for applying [the
Pennsylvania] constitution's rights of speech and assembly to
property private in name but used as a forum for public debate."
Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen.
Life Ins. Co.,
515 A.2d 1331, 1336 (Pa. 1986) (discussing Tate).
The Tate court overturned a trespass conviction for distributing
pamphlets on a college campus. 432 A.
2d at 1391. Yet when the
court reviewed a subsequent case concerning an alleged
constitutional right of access to a shopping mall, it recognized
that unlike a university, the shopping mall was not a public
forum for political expression. Western Pa. Socialist Workers,
supra, 515 A.
2d at 1337. The court found that the mall "is
operated as a market place for the exchange of goods and services
but not as a market place for the exchange of ideas." Ibid.
That rationale is entirely consistent with the Schmid Court's own
finding that "Princeton University's raison d'etre is more
consonant with free speech and assembly principles than a
shopping center's purposes might be * * * ." 84 N.J. at 551.
Unlike universities, shopping malls are not public forums
dedicated to public use or to the exchange of ideas.
Although the majority alleges that it is adhering to Schmid, its opinion discloses that it is not. Indeed, the majority has forgotten the primary premise of Schmid, that a balance must be found between the rights of private-property owners and the expressional freedom of others on that property. A proper application of Schmid supports the trial court's judgment, which the Appellate Division affirmed, that the mall owners may bar Coalition from distributing its leaflets in the malls.
After a close and careful examination of the normal use of each mall and the public invitation each mall extended, the trial court set forth its factual findings. The first prong of the Schmid test requires a court to take into account the nature, purposes, and primary use of the private property -- its "normal" use. In that regard, the trial court concluded:
It is this court's opinion that that question may be answered unequivocally. The nature, purpose and primary use of the malls is commercial. The shopping malls are retail establishments, constructed, designed and maintained to do business and make a profit. I did not hear one fact at trial which controverts or contradicts this finding. The plaintiff offered no proofs which will lead this court to any other conclusion.
266 N.J. Super. 195, 200 (Law Div. 1991)
primary purpose, that is, business and commercial ventures."
Despite the trial court's findings, the majority baldly asserts that the mall owners issued an invitation to the public to use their private property "to do what they please" and granted "practically unlimited permitted public uses * * * on their property." Ante at __ (slip op. at 50). Under the majority's reasoning, the nature and extent of the invitation is of no moment. By the majority's analysis, any time the public is invited onto large, privately-owned property, it becomes a place to congregate and therefore becomes the functional equivalent of a downtown area. In Lloyd Corp., supra, the United States
Supreme Court rejected the "functional equivalent" analysis,
[407 U.S. at 564-65, 92 S. Ct.
Indeed, strikingly absent from the majority opinion is any
awareness that the primary users of shopping malls are shoppers.
515 A. 2d at 1341 (McDermott, J., concurring).]
In contrast to the purpose of a shopping mall, the primary purpose of a university is to educate, i.e., to increase the wealth of human knowledge, which can be done only through discourse and discussion, free and open debate. That is the significant difference between Princeton University and The Mall at Short Hills. Shopping can be accomplished even with mouths shut and minds closed.
The majority ignores any distinction between the purpose of Princeton and the purpose of a mall. "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 * * * ." Ante at ___ (slip op. at 37). Therefore, under the majority's reasoning, whether the property, like Princeton University, was dedicated to the public for public
discussion is irrelevant. All that matters is that the property
was open to the public, as is a shopping mall or any other large
gathering space. An example of a publicly-accessible place that
will become an open forum for expression under the majority's
analysis is Great Adventure Theme Park. That result is plainly
opinion. Clearly, a mall allowing a pro-choice group to
distribute pamphlets will face opposition from pro-life groups.
Yet under the majority's opinion, a mall owner could not restrict
such groups from its private property.
or clothing? Aside from "controversial"
issues, a host of content-based questions
arise once politicians, religious groups,
charities and "causes" invade the mall.
Each mall owner will have to answer those subjective
questions, as well as many others, on a daily basis. Although
the majority recognizes the difficulty in preparing regulations
and procedures concerning leafletting in the malls, ante at ___
(slip op. at 74) (granting sixty day stay), they provide no
standards for the mall owners to use in resolving those problems.
Moreover, regardless of the standards used, each mall owner will
be second-guessed and litigation concerning the private owner's
decision will ensue. Public officials may have to face those
issues in granting parade permits, but private-property owners
should not be forced to decide those value-laden questions.
To circumvent the detailed and meticulous findings of the trial court, the majority departs from the Schmid test and argues that shopping malls are the "functional equivalent" of the traditional downtown business districts or town squares. Ante at ___ (slip op. at 25, 46). In support of that theory, the majority relies on "common knowledge" of the Court outside the record, ignoring the factual findings of the trial court and evidence that many of the towns in Essex, Hudson, and Morris Counties around the malls have become more, not less, vibrant.
Under the majority's theory, private property becomes municipal land and private-property owners become the government. The United States Supreme Court discredited that proposition over twenty years ago, Lloyd Corp., supra, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed.2d 131, and likewise almost every state court that has considered it has discarded it. See, e.g., Fiesta Mall Venture v. Mecham Recall Comm., 767 P.2d 719 (Ariz. Ct. App. 1989); Cologne, supra, 469 A.2d 1201; Citizens for Ethical Gov't, Inc. v. Gwinnett Place Assocs., 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, supra, 515 A.2d 1331; Charleston Joint Venture v. McPherson, 417 S.E 2d
544 (S.C. 1992); Southcenter Joint Venture v. National Democratic
780 P.2d 1282 (Wash. 1989); Jacobs v. Major,
407 N.W.2d 832 (Wis. 1987).
little resemblance between the shopping
center involved in this case and Chickasaw,
[391 U.S. at 330-32, 88 S. Ct. at 1615,
conditioned comfort in them during Phoenix's
scorching summers does not change that basic
No such sensitivity exists in this case; there is no need to carefully calibrate the risk of damaging the mission of these centers, for the risk is practically non-existent. More than that, the constitutional obligation in this case arises from what we have come to recognize as the essential nature of regional shopping centers -- their all-inclusive uses and their corresponding all-embracing implied invitation to the public. For regional shopping centers, the implied expressional invitation is part of their nature, solidly embedded in their inescapable mission as the intentional successors to downtown business districts and their basic profit-making purpose. We foresee no likely change in that essential nature that would affect the elements of the standard or the ultimate balance between free speech and property rights.
Common sense also dictates that privately-owned-and operated shopping malls are not the functional equivalent of downtown business districts. They are not "replica[s] of the
community itself." Ante at ___ (slip op. at 45). Shopping malls
do not have housing, town halls, libraries, houses of worship,
hospitals, or schools. Nor do they contain the small stores,
such as the corner grocer, that used to serve as the forum for
exchange of ideas. Indeed, most shopping malls do not allow
people even to walk their dogs there.
and therefore provides no basis for the Court's opinion. The
circumstances of the instant case stand in stark contrast to
those in Shack. Here effective alternative means of
communication are readily available. Moreover, the people whom
the Coalition sought to reach at the malls are far from the
disadvantaged, impoverished people of Shack who were subject to
the singular authority of the property owner; they are visitors
to a mall drawn to that location for commercial purposes. No
compelling interest or policy mandates an invasion of the
property owner's rights. Nothing in this case forces this Court
to subserve the rights of private-property owners to the free
speech rights of the public as we were compelled to do in Shack.
that right to private property. The majority's decision today
guarantees the right to a forum for free expression not only on
public property, or on private property in the limited
circumstances as permitted under Schmid, but on all private
property -- not just shopping malls -- where a captive audience
can readily be found. Like the court in Cologne, I too am unable
to "discern any legal basis distinguishing this commercial
complex from other places where large numbers of people
congregate, affording superior opportunities for political
solicitation, such as sport stadiums, convention halls, theaters,
county fairs, large office or apartment buildings, factories,
supermarkets or department stores." 469 A.
2d at 1209; see also
Southcenter, supra, 780 P.
2d at 1292 (same); Woodland, supra, 378
2d at 353 ("`Nor is size alone the controlling factor. The
essentially private character of a store and its privately owned
abutting property does not change by virtue of being large or
clustered with other stores in a modern shopping center.'"
(quoting Lloyd Corp., supra, 407 U.S. at 569, 92 S. Ct. at 2229,
33 L. Ed.
2d at 143)).
* * *. " Ibid. Yet the facts adduced at trial, the descriptions
of each of these malls and the activities that did and did not
take place in them, even the trade's determination of what
constitutes a regional mall, ante at ___ (slip op. at 12-13),
reveal vast differences among these properties. Their only
commonality is that they attract large numbers of people for
That broad assertion limits nothing; in fact, it extends this holding far beyond that ever contemplated in Schmid, perhaps beyond that ever contemplated by the drafters of New Jersey's constitutional free speech provisions.
In reaching its result, the majority completely ignores the rights the New Jersey Constitution grants to the owners of private property. See art. I, paras. l, 20. No support exists for the proposition that the majority announces today, that a right to free expression exists anywhere an audience may be found. The constitutional right to free expression does not
command such an extreme result. It guarantees a forum, not an
The majority's opinion ignores the basic commercial purpose of these private malls, ascribes to them the downfall of urban business districts, and delegates to them the responsibility to fulfill the role once, and arguably still, played by town squares. It does all of that without any legitimate or rational justification. Moreover, the Court places burdens on the private malls that they are ill-suited to handle. Ultimately, mall owners will pass those burdens on to the consumer. The private property owner and ultimately the consumer, the forgotten person in the majority opinion, will have to pay the increased costs that result from the expanded security and other expenses associated with the public's free access to the mall for expressional activities. Unlike the municipalities that the majority thinks the malls have supplanted, malls are not exempt from most tort claims under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3.
Plaintiffs cannot claim that they have no means to express their opinion to the public other than by distributing pamphlets in shopping malls. No evidence shows that plaintiffs could not effectively distribute their pamphlets in other areas. Indeed, according to plaintiff's November 9, 1990, press release, they distributed their materials in at least thirty locations,
including several downtown areas. Ante at ___ n.3 (slip op. at 9
n.3). They were able to distribute over 85,000 pamphlets in
those locations during a three-day period. Plaintiffs do not
need to use the malls, save for their own convenience. See ante
at___ (slip op. at 59-60) (discussing convenience and ease of
using shopping malls for petition signing). "Petitioners'
convenience, however, does not create a constitutional right of
access to private property for political activity." Citizens For
Ethical Gov't, supra, 392 S.E.
2d at 9.
Plaintiffs predicate their desires to express themselves on
the private property of these shopping malls not on some
constitutional mandate but rather on considerations of
efficiency, cost, and convenience. Yet such factors do not a
Justice Clifford and Judge Michels join in this opinion.
SEPTEMBER TERM 1993
ON APPEAL FROM ON CERTIFICATION TO Appellate Division, Superior Court
NEW JERSEY COALITION
AGAINST WAR IN THE MIDDLE
EAST, SYLVIA ACKELSBERG, and
J.M.B. REALTY CORPORATION,
d/b/a Riverside Square, PRUTAUB
JOINT VENTURE, d/b/a The Mall
at Short Hills,
CHERRY HILL CENTER, INC., d/b/a
Cherry Hill Mall, et al.,
DECIDED December 20, 1994 Chief Justice Wilentz
OPINION BY Chief Justice Wilentz CONCURRING OPINION BY DISSENTING OPINION BY Justice Garibaldi
Footnote: 1As noted and explained infra at __ (slip op. at 64-66), our ruling applies to all regional shopping centers. We do not decide if it applies to all community shopping centers.
Footnote: 2The Coalition is comprised of several dozen political and religious groups with related but not identical political agendas. There are over 25,000 individual members, including the following groups: New Jersey SANE/FREEZE, New Jersey Citizen Action, Monmouth County Pax Christi, New Jersey Council of Churches, the New Jersey Rainbow Coalition, the Baptist Peace Fellowship, the Coalition for Nuclear Disarmament, Vietnam Veterans Against the War, Drew University Peacemakers, the Monmouth County Coalition for the Homeless, the Jersey Cape Coalition for Peace and Justice, the New Jersey Peace Mission, the New Jersey Pledge of Resistance, the South Jersey Campaign for Peace and Justice and the Women's International League for Peace and Freedom.
The Coalition established the following four objectives: 1) to prevent United States military intervention in the Persian Gulf, 2) to prevent the establishment of a United States base in the Middle East, 3) to obtain a peaceful solution to the Persian Gulf crisis by an international agency and 4) to divert the expenditure of United States tax dollars from defense spending to domestic spending. It sought to achieve these objectives by, among other things, distributing educational literature and obtaining signatures on petitions and sending them to public officials.
Footnote: 3According to plaintiff's November 9, 1990 press release, their materials were distributed in at least 30 locations including Journal Square in Jersey City, Newark Penn Station, Camden City Hall, the Lewes Ferry in Cape May, the Hoboken PATH station and locations in Atlantic City, New Brunswick, Wrightstown, Princeton, Trenton, Woodbridge, Edison, Rockaway, Bernardsville, Montclair, South Orange, Maplewood, Englewood, Fort Lee, Rutherford, Glen Rock, New Providence, Plainfield, Cranford, Westfield, Haddonfield, Collingswood, Red Bank, Long Branch, and Middletown. Plaintiff's representatives also distributed leaflets at the Port Authority Bus Terminal in New York and Market Street Station in Philadelphia.
Footnote: 4Congress had voted in January 1991 to authorize the President to use armed force to repel the Iraqi aggression in Kuwait. S.J. Res. 2, 102d Cong., 2d Sess. (1991); H.J. Res. 77, 102d Cong., 2d Sess. (1991). The Senate narrowly approved the joint resolution by a vote of fifty-two to forty-seven. 137 Cong. Rec. S403 (daily ed. Jan. 12, 1991). The resolution's margin of success in the House of Representatives was 250 to 183. 137 Cong. Rec. H485 (daily ed. Jan. 12, 1991).
Footnote: 5Gross Leasable Area refers to "the total floor area designed for tenant occupancy and exclusive use. . . . GLA is the area for which tenants pay rent." National Research Bureau, 1991 Directory of Shopping Centers in the United States, Eastern Volume (1990).
Footnote: 6The myriad of uses permitted at the malls defies description. In the appendix to this opinion, which reproduces Appendix B of the trial court's opinion, we have listed these uses.
Footnote: 7Defendants presented the affidavit of the general manager of Sunvalley Mall in Concord, California. While noting that in 1990 the mall issued 266 permits for expressive activities on its premises, he provided only one example of disruption: a group of seventy activists handed out condoms in the mall. There is no mention, however, of any financial harm as a result of that incident. Defendants could clearly prohibit such conduct by virtue of their power to regulate leafletting activities.
Footnote: 8This study reported the number of malls with gross leasing areas (GLAs) greater than 400,000 square feet. Because regional and super-regional malls have GLAs of at least 300,000 square feet, see National Research Bureau, Shopping Center Directory 1994, Eastern Volume (1993), this number most likely underestimates the number of regional and super-regional malls.
Footnote: 9In 1990, the adult population in New Jersey was 5,931,524. I Division of Labor, Market and Demographic Research, New Jersey State Data Center 1990 Census Publication, Profiling New Jersey II: State of New Jersey (1993).
Footnote: 10Our observation in State v. Schmid, 84 N.J. 535, 551 (1980), that "Princeton University's raison d'etre is more consonant with free speech and assembly principles than a shopping center's purposes might be" was made in connection with our analysis of Lloyd. It did not purport to be dicta based on the issue decided in Schmid, but rather noted that under the restrictive ruling in Lloyd, Princeton University was a better candidate for First Amendment free speech than was a shopping center.
Footnote: 11As noted earlier, a list of non-retail activities offered by defendants is included as an appendix to this opinion. Some hint of the future is found at a Camden County mall (Echelon Mall, apparently either a regional or community shopping center, not a defendant in this case) where the Camden County Board of Chosen Freeholders, in conjunction with the Camden County Library Commission has rented space (the "Camden County Store") where citizens, without charge, can obtain all kinds of information about county services, including specific information about matters pending before other county agencies, advice on a variety of governmental programs, including referrals to other governmental agencies, all presumably formerly available at the downtown business district of Camden city. From time to time, different agencies of county government apparently make presentations concerning their work and services. During its first two months of operations, the center has attracted more than 5,000 people. Herbert Lowe, Camden County Services Flourishing at Mall, Philadelphia Inquirer, November 29, 1994, at S1.
Footnote: 12We note the reasoning of Logan Valley and of the dissents in Lloyd and Hudgens. As noted by Justice Marshall in his dissent in Hudgens:
[T]here is nothing in Marsh to suggest that its general
approach was limited to the particular facts of that
case. The underlying concern in Marsh was that
traditional public channels of communication remain
free, regardless of the incidence of ownership. Given
that concern, the crucial fact in Marsh was that the
company owned the traditional forums essential for
effective communication. . . .
In Logan Valley we recognized what the Court today refuses to recognize -- that the owner of the modern shopping center complex, by dedicating his property to
public use as a business district, to some extent
displaces the "State" from control of historical First
Amendment forums, and may acquire a virtual monopoly of
places suitable for effective communication. The
roadways, parking lots, and walkways of the modern
shopping center may be as essential for effective
speech as the streets and sidewalks in the municipal or
[Hudgens v. NLRB, 424 U.S. 507, 539-40, 96 S. Ct. 1029, 1046, 47 L. Ed 2d, 196, 218-19 (1976).]
Footnote: 13We note the proposals on initiative and referendum introduced in 1994. A. Con. Res. 33, 206th Leg., 1st Sess. (1994); A. 111, 206th Leg., 1st Sess. (1994).
Footnote: 14These figures are based on the number of registered voters for the 1992 election. Center for Government Services, 1993 New Jersey Legislative District Data Book 5, 12 (1993).
Footnote: 15These projections are based on the number of voters in the 1993 gubernatorial election, as reported in the New Jersey Legislative Manual 860 (1994).
Footnote: 16Our holding also applies to the defendant community shopping center (The Mall at Mill Creek) but the record before us is insufficient to satisfy us that it should apply to all community shopping centers. More information is necessary before that determination can be made.
Footnote: 17Our treatment of commercial speech is consistent with the lower level of protection afforded such speech under the Federal Constitution. As noted by Justice Clifford,
"Although commercial speech is protected under the First Amendment, there is a "common-sense" distinction between speech proposing a commercial transaction and other varieties of speech, including political speech, and thus the constitutional protection accorded to commercial speech is less than is provided to other constitutionally guaranteed expression." State v. Miller, 83 N.J. 402, 412 n.5 (1980) (citing Central Hudson Gas & Elec. Corp. v. New York Pub. Serv. Comm'n, 447 U.S. 557, 100 S.
Ct. 2343, 65 L. Ed.2d 341 (1980)). We realize some commercial speech may be regarded as issue-oriented. We do not address that situation.
Footnote: 18We do not foresee a disturbance such as that which occurred at Westfarms Mall in Connecticut in 1983, due to the unusual nature of the circumstances surrounding that incident. As discussed in Cologne v. Westfarms Associates, 469 A.2d 1201, 1203 n.2, 1204 n.4 (Conn. 1984), an injunction against the mall allowed the National Organization for Women to solicit signatures in support of specific issues, but the mall continued to deny access to other groups. However, because of the injunction, the local police refused to respond to the mall's requests that groups leafletting without permission be evicted as trespassers. On a Sunday in May of 1983, the Ku Klux Klan attempted to appear at the mall after being denied permission. They were barred from entering the mall with the assistance of the police. After their departure, a demonstration by a number of anti-Klan protestors required the further intervention of local police, as well as that of state police. Several mall stores closed for the day as a result of the incident. It is unclear when the police responded or whether their policy of non-intervention contributed to the disturbance. The fact that this is the only such confrontation brought to the attention of this Court suggests that such incidents are rare. Given the clear terms and conditions of our opinion, the confusion that apparently contributed to the Westfarms Mall disturbance will not exist.
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