Court Tells Mall That It Cannot Ban Customers From Talking To Strangers

from the chat-away dept

Wed, Aug 18th 2010 12:22am — Mike Masnick

Apparently, a mall in California tried to put in place rules that barred people in the mall from approaching those they did not know and talking to them about anything other than shopping in the mall. It specifically disallowed:

"approaching patrons with whom he or she was not previously acquainted for the purpose of communicating with them on a topic unrelated to the business interests."

The goal was to prevent pitches and sermons and such -- and it was even used to make a "citizen's arrest" of a minister who was preaching at the mall. However, a court has rejected this rule, as a violation of free speech rights. Now, my first reaction to this was to wonder why a private corporation could be found violating free speech rights -- as the US Constitution only says that the government may not limit free speech -- private corporations can, indeed, limit speech. However, this was an issue having to do with California law, where the state constitution is a bit broader:

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.

It may seem ridiculous to try to limit speech within a mall, as noted by the following exchange during a deposition in the case:

"If you're going to talk about any other subject (other than the mall) ... then you're prohibited from going up to strangers and speaking to them, is that correct?" he was asked by a Snatchko attorney.

"That's not correct," Farnam testified. "It doesn't prohibit you. It just means you have to come in and fill out the application for third-party access for noncommercial" speech.

What if, the attorney postulated, he is excited about the Super Bowl and says to a stranger, "Hey, hope you're supporting the Patriots," or "Hope you're supporting the Giants this week." Would that violate the rules? he asked.

"You can go in and again fill out a third-party access, if that's what a person chooses to do," said Farnam

As the Sacramento Bee noted in discussing this case:

Weather is a no-no, unless one is intuitive enough to observe how it may be affecting the size of the crowd at the mall. Teenagers who use the common areas for social gatherings, not necessarily limited to contemporaries they already know, are out of luck. Should someone stop you and ask directions to Sutter-Roseville Medical Center, you would be well advised to blow them off, lest your humanitarian instincts lead you astray.

However, in the end, I still find this troubling. If the mall wants to have such a ridiculous policy, with such ridiculous results, why should the government stop them from doing so? I would imagine the mall has other rules for determining who is and who is not allowed to patronize the mall. What's wrong with letting the mall create such a silly policy?

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Filed Under: california, free speech, malls

68 Comments

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Andrew F (profile), 18 Aug 2010 @ 12:42am

Can't find the case but ...
I suspect a few things are going on:

1) Malls have a weird status. They're private corporations, but they operate as pseudo-public places (that in fact, have replaced many actual publicly owned spaces). The theory is you act like a public space, you get treated as one. I'm not sure if courts have ever recognized this argument, but it's certainly been made.

2) Unenforceable contract - Unless there's a sign at the door saying "you may not enter unless you agree to XYZ terms," the mall may not be able to enforce its restrictions. Moreover, the fact they're enforcing their policy unevenly (I highly doubt someone talking about the weather is getting kicked out, no matter what they say) is not helping their case.

I'm not sure exactly how this translates into a free speech issue though.
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Anonymous Coward, 18 Aug 2010 @ 12:52am

This can be used to bypass free speech, if the law does allow such things that should be amended to take into account places where the public gather should be considered public space for the law.
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Ryan, 18 Aug 2010 @ 1:07am

Re: Can't find the case but ...
In response to your theories, I would say that #1 is an equally troubling issue(though has certainly been raised before) that taken far enough allows the government to control any place with two or more people, and #2 doesn't apply because the mall does not require a contract to expel anybody they wish from the premises - citizen arrests notwithstanding(wtf? what was the rationale behind that?).
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Andrew D. Todd, 18 Aug 2010 @ 1:20am

Here Is The Case:
http://www.courtinfo.ca.gov/opinions/documents/C059985.PDF
http://www.firstamendmentcenter.org/news .aspx?id=23271
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Anonymous Coward, 18 Aug 2010 @ 1:27am

they went the wrong way about it, but I understand it

cant stand being bothered by people pushing XYZ religion on me as I walk past, or people pushing their product or whatever, having nothing to do with the mall, I absolutely would like them to get expelled from the mall, mall is a private property entity, not a public has the right to be there

as long as your conversation has no solicitation in it, talk to strangers if you want, I dont talk to strangers tho, I ignore them and move on

unless shes hot, but then again, she wants something if shes talking to me
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Crosbie Fitch (profile), 18 Aug 2010 @ 1:32am

What's troubling?
What's troubling is that you appear to be surprised that a corporation let alone a human being shouldn't be able to interfere in anyone's speech.

Just because you've permitted people on your premises that doesn't mean they become your puppets or playthings. You can eject them, but that doesn't mean you can do what you like to them if they remain, e.g. gag them, punish them if they sing, get them to stand on one leg, etc.

Privacy is the natural right to exclude others, not to have power over them as if property.
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Paddy Duke (profile), 18 Aug 2010 @ 1:37am

What Laws Are For
Laws should exist to protect people from others.

They should not exist to try to protect people from themselves.

If a mall wants to do something stupid and put itself out of business, then let it do that. That’s not the kind of business you want to keep around anyway.

If the recording industry wants to stick to their old ways while the rest of the world adopts new technologies and business models, let them do that.

Don’t force the rest of us to pay for their idiocy/laziness.
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Anonymous Coward, 18 Aug 2010 @ 2:43am

Re:
Which would be an illegal abridgment of the laws of private citizens. The mall is, like it or not, private property, and they should feel free to expel whomever they wish. Trying to bring Constitutional Law to bear here is one step closer to allowing government to control your own actions in whatever way they wish.
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Anonymous Coward, 18 Aug 2010 @ 2:48am

Nice sentence
"approaching patrons with whom he or she was not previously acquainted for the purpose of communicating with them on a topic unrelated to the business interests."
I am the only one who thinks that is so stupid that it sounds like a US-approved patent?
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mike allen (profile), 18 Aug 2010 @ 3:03am

OK lets take it a step further comment by AC said "cant stand being bothered by people pushing XYZ religion on me"
Add to that I cant stand corporations or salesman coming up to me trying to sell double glazing, or new Kitchins I not interested in not to mention charity people trying to get you to sign up to giving them money. To me they are never going to get me to buy or give and i leave them with no doudt about that. So the mall can ban speach of any kind as long as it not mine.
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Anonymous Coward, 18 Aug 2010 @ 4:09am

They made a bad rule
They would have had no problem had they used something simpler, like "do not be a nuisance to other people in the mall or we will kick you out".

Covers people screaming at the top of their lungs about something, does not cover people asking about the weather or "did you see that airplane that hit a building?" (is there a Godwin equivalent for that yet?).
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Danny (profile), 18 Aug 2010 @ 4:10am

I want to flirt; would you wait there while I go fill out a form to get permission to do so?
I can see them having the right to police speech on their private property as long as they do so equally across the board and not use it selectively to exclude specific classes of people they are not comfortable with.
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Christopher (profile), 18 Aug 2010 @ 4:14am

How are they going to enforce it?
Private security? For serious? Just ignore the law.

-C
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Michael, 18 Aug 2010 @ 4:25am

Re: I want to flirt; would you wait there while I go fill out a form to get permission to do so?
You just need your flirting to be mall related.

I think "The way your eyes reflect the color of the Cinnabon sign is very beautiful" is acceptable.
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NullOp, 18 Aug 2010 @ 4:30am

Wonderful....
The court had to explain the First Amendment to some mall people. What, do they think they can do exactly what they want just because it's their property? DA!
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senshikaze (profile), 18 Aug 2010 @ 4:51am

I understand that corporations are not required to respect free speech like the government is, but shouldn't they? Shouldn't I be able to say what I want, where I want, and when I want? I think freedom of speech, being a right(not a privilege) should mean that no one should be able to tell me what I can and can not say. Regardless of whether that someone is a government, a corporation or another citizen.

Just my $0.02
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Rose M. Welch (profile), 18 Aug 2010 @ 5:15am

I think that malls should be allowed to eject anyone they like, subject to existing laws, but that they certainly shouldn't be allowed to 'arrest' or detain someone for violating a policy.

That seems problematic to me, and may have seemed problematic to the court, as well.
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Chronno S. Trigger (profile), 18 Aug 2010 @ 5:19am

Re:
Corporations can't tell you what you can an cannot say. They cannot enforce that in any way short of violating other laws, and they can't call the police since the police are bound by the first amendment.

They can, however, tell you to get off their property for any reason or no reason (unless in violation of federally or locally mandated racial or gender or handicap tolerances). And if you don't, then it can involve the police. That's why you see picket lines outside of the property they are picketing.

They cannot detain you just for violating private rules, and that is what this trial should have been about (if it wasn't already).
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abc gum, 18 Aug 2010 @ 5:24am

The moonies were kicked out of airports some time ago and I doubt many people think it was a bad idea. The malls may follow the same path eventually, if the nuts become too annoying. For example, if Fred Phelps & family start showing up at the mall ...
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Anonymous Coward, 18 Aug 2010 @ 5:32am

Re: Wonderful....
If someone is making a nuisance of themselves, simply eject them from the premises. Why bother codifying the grounds for ejection when you can eject someone from your own privately owned land for no reason at all?
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Kevin, 18 Aug 2010 @ 5:42am

Re:
Normally this sort of thing should be completely hands-off, but they pushed the envelope and the rules were ridiculous, at least on-paper. Obviously the rules were never going to be enforced except for their intended targets, but they set a pretty awful precedent. The mall would be better served setting up a 3-strike policy based on patron complaints (you could set up a mobile kiosk 20 feet away with a 30-second turnaround time.. we know how many customers would happily stop by and say "kick them out"). Your unauthorized advertisers and peddlers will wither in the face of a permanent ban. Your religious nuts may try to start sending the junior members of their congregation, but it shouldn't take too long to wade through those.
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Anonymous Coward, 18 Aug 2010 @ 5:49am

Re: What Laws Are For
Those rules also include you speaking to other customers, you could get in trouble for saying the food it is not good, or some product is not good and being overheard by a mall employee.

Would people like to get arrested for that?

Free speech is a nuisance to some people that is the price to pay for it, what is better to be annoyed or to be gagged?

Or will you got get a permit for speaking in the premises everytime you let out an opinion like the one you just write there, because is that what you are giving up.
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Kaisersote, 18 Aug 2010 @ 5:49am

Mike's Missed Point
I agree this is private property, and the mall has the right to regulate speech on its property. However someone citizen's arrest a preacher for violating the stranger rule. Aren't arrests based on public law and not private rules? I think this is where the situation gets hairy.
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Niall (profile), 18 Aug 2010 @ 5:58am

Private/Public Property
I don't know about over in the US, but in the UK there are some overlaps between 'private' and 'public' space. Somewhere can be privately owned, but subject to rules affecting public places - the definition is based on whether the public has any kind of access, so a mall is definitely covered, but in some circumstances (especially where smoking bans are involved), anywhere that is not personally private is affected by some laws (such as mandated disabled access).
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out_of_the_blue, 18 Aug 2010 @ 6:04am

The mall is *not* private property; it's a place of business.
They've *invited* people to come in. THEY have voluntarily reduced THEIR property rights, NOT OURS. Their purpose is to make a buck; in *no* way does that *increase* their rights.

"why should the government stop them from doing so?" -- Because it's a proper function of gov't to protect the public from exactly such abuses as this. CORPORATIONS DO NOT HAVE SUPER-RIGHTS THAT ABRIDGE OURS. -- Your question simplistically assumes that one can go down the street to a mall that doesn't have such a policy. But if one mall gets this authoritarian step put over as de facto law, *all* will adopt it, and then you'll be *forced* to endure "corporate policy", though you'd in theory still be "free". -- By the way, plans *are* in progress to "privatize" all public property including roads and water supplies. For your own interests, always oppose increases of corporatism.

Oh, and the applications of these principles to web-sites may not have occurred to you.
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ShellMG, 18 Aug 2010 @ 6:15am

I've been accosted at the mall by hucksters operating those kiosks far more often than street preachers. After being nearly chased *four times* in one day, I not only complained to management but I've never been back. What part of "no thank you!" do these people not understand?
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Anonymous Coward, 18 Aug 2010 @ 6:19am

That must mean that they had a way of monitoring speech. You notice how quiet the malls are anymore? No more music because the performing rights mob have collected them to death and now we can't even listen to crappy mall music. Hah. Copyright and private police agencies really work. Right?
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Rob, 18 Aug 2010 @ 6:25am

Mall Law
If you're the mall management, you've got a couple options when you figure a guy's being too much of a nuisance.

1. Ask him to leave. He leaves or you call the real cops, who arrest him for actual trespassing, and he gets in trouble with the law, not you.

2. Ask him to leave. If he doesn't, you call the Mall Cops to arrest him for breaking Mall Law and put him in Mall Jail. Now you're the one that's in trouble, because the Real Cops and Real Law don't particularly like someone else horning in on their racket.

So you save the heroics for the preacher who's actually beating the customers with the Bible, or knocking over the ATMs.

Although, I understand it's much safer in terms of "cuffing and stuffing" to go after the non-violent guy. Same high, less risk, right?
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known coward, 18 Aug 2010 @ 6:36am

i have an idea
How about the mall install seperate but equal water fountains. If black people go to one and white people go to another, everyone gets their water faster, and can spend more time shopping
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Jesse, 18 Aug 2010 @ 7:26am

Next thing you know, it's going to be a terms of use violation, resulting in a lawsuit, and then the feds are going to charge a customer with some hacking law.

The point is, the government absolutely cannot help enforce such policies. That is, such policies should be rendered unenforceable by anyone. So that "citizen's arrest?" Unlawful confinement. Citizen's arrest requires a crime, and here none was committed.

It is not strange for governments to put limitations on how corporations can treat customers. In much of Canada, and I believe some states, there are laws against mandatory arbitration clauses (that is, they are unenforceable). There should be some things you just aren't able to agree away to anyone. "If you enter our store you agree to give us your first born." Private business does not equal, "We can do whatever we want yadda yadda free market yadda yadda consumer choice."
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Anonymous Coward, 18 Aug 2010 @ 7:32am

As a sovereign state California has every right to pass laws protecting free speech in malls if it wishes.
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Chucklebutte, 18 Aug 2010 @ 8:01am

Again with the 2 evils!
Just like with the Best buy and God squad fiasco, it is so hard to choose sides with these 2 stories. I am anti big business and anti god, so whose side to choose...
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Anonymous Coward, 18 Aug 2010 @ 8:41am

Re: The mall is *not* private property; it's a place of business.
You sir, are a moron. Please turn off your computer and through it away.
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nasch (profile), 18 Aug 2010 @ 8:48am

Re: What's troubling?
Um, strawman? Is the mall "doing what [they] like to them if they remain"? Or telling them they have to either fill out the application, leave the mall, or shut up (ie follow the mall's rules)?
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crade (profile), 18 Aug 2010 @ 8:50am

Re: Re:
"unless in violation of federally or locally mandated racial or gender or handicap tolerances"
Don't forget religious.
But isn't the reason for this fundamentally the same reason they shouldn't be able to expel for the purpose of censorship of free speech? Should I be able to manipulate what people are can talk about simply because I am able to entice them into wanting to stay on my property?
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btr1701 (profile), 18 Aug 2010 @ 8:54am

Arrest
> What's wrong with letting the mall create such
> a silly policy?

What's wrong with it is that they're apparently taking it to such extremes that they're conducting "citizens arrests" on people who violate it.

I shouldn't have to be subjected to some overzealous high school dropout with a power-trip working as a mall cop putting his hands on me, handcuffing me, calling the police, pressing charges, etc. just because I stopped to chat with a pretty girl or ask someone directions to the nearest gas station.
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btr1701 (profile), 18 Aug 2010 @ 9:00am

Re: Can't find the case but ...
> Malls have a weird status. The theory is you act
> like a public space, you get treated as one.
> I'm not sure if courts have ever recognized this
> argument, but it's certainly been made.

The first cases asserting free speech rights in privately owned shopping centers were successful. In the 1946 case of Marsh v. Alabama, the Supreme Court held that the business district of a privately owned "company town" was the same as a public street for First Amendment purposes, finding that "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." A 1968 case—Amalgamated Food Employees Union v. Logan Valley Plaza—held that a privately owned mall was the "functional equivalent" of the business district in Marsh.

But realizing they had overreached in the early cases, and sensitive to what they had done to private property rights, the Supremes reversed course in Hudgens v. NLRB, a 1976 case holding that the First Amendment guarantees no free speech rights in private shopping centers. And in an important 1980 case, Pruneyard v. Robins, the court upheld the general notion that citizens have no First Amendment rights to express themselves in privately owned shopping centers.
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RobShaver (profile), 18 Aug 2010 @ 9:04am

What if ...
"Help! Sir, I think I'm having a heart attack. Please call 911"

"Sorry, you'll have to fill out the application for third-party access for noncommercial speech first."
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Anonymous Coward, 18 Aug 2010 @ 9:09am

I want to visit Nazi Mall.
This chain of malls always had a little nazi feel to them, but now it's confirmed. I hope they come out of the closet, embrace their internal control freak, and also ban customers from buying ice-cream and cookies; because frankly, eating sweets at the mall will undoubtedly ruin the mall patrons dinner.

If that doesn't work, they could always start their own blog to have control over their users!
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Anonymous Coward, 18 Aug 2010 @ 9:12am

I want to visit Nazi Mall.
This chain of malls always had a little nazi feel to them, but now it's confirmed. I hope they come out of the closet, embrace their internal control freak, and also ban customers from buying ice-cream and cookies; because frankly, eating sweets at the mall will undoubtedly ruin the mall patrons dinner.

If that doesn't work, they could always start a blog to have control over little peon users!
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Anonymous Coward, 18 Aug 2010 @ 9:17am

Re: Re: Can't find the case but ...
I have not researched the issue, so I do not know if restrictions on speech in shopping malls are still recognized as legitimate under the First Amendment.

Pruneyard, however, involved not the First Amendmentlimitation on federal action, but the California Constitution guarantee of free speech, a guarantee broader than the First Amendment (which is perfectly permissible).

In any event, this is a free speech case under the California Constitution's provisions re free speech, and with the long established legal principle that shopping malls are general (i.e., there can be limted exceptions that do not appear to apply here) deemed to be quasi-public in nature and California's free speech provision applies with equal force.
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btr1701 (profile), 18 Aug 2010 @ 9:31am

Re: Re: Re: Can't find the case but ...
> Pruneyard, however, involved not the First
> Amendment limitation on federal action

Actually, it did. If the case were only about the California Constitution, it would never have entered the federal system in the first place and would not have ended up at the Supreme Court.

The challenge under the U.S. Constitution's 1st Amendment was denied. The Court reiterated that there are no 1st Amendment rights on private property under the U.S. Consitution, but they acknowledged that California provided greater protections for free speech and they were legitimate.

So while the plaintiffs lost their 1st Amendment challenge, they ultimately won the case nevertheless.
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Crosbie Fitch (profile), 18 Aug 2010 @ 9:34am

Re: Re: Re: Can't find the case but ...
The rule should be that if you make no attempt to exclude the public (fence, selective admission) your 'private' premises are to be considered public domain (until you resume excluding all public).

So if you are not selective on admission, you cannot be selective on ejection - if you wish to eject one, you have to eject all. In such a case only police can be selective.
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Patrik, 18 Aug 2010 @ 9:54am

Re: What Laws Are For
What does the recording industry have to do with the antiquated business models of record companies? The recording industry is made up of engineers, acoustic designers, carpenters, the people that design bass traps and acoustic moulding, guitar and drum techs, producers, session musicians, songwriters... these people have almost nothing to do with how music is sold to people. In fact, people on the technical side of music making are far more cutting edge than most businesses.

What's sad is that people are mad at the Record Companies and are succeeding only in taking it out on the recording industry (and let me point out that most of these people are too young to actually have a complaint about the industry. It's lame to justify refusal of payment to current artists because labels ripped off *other* artists in the past. Or do you want to be held responsible for all your ancestors' actions?). It's not the engineer's fault that a decent mic costs $1000s of dollars, that the preamp to push it can cost just as much, that a professional mixing console can run up to a MILLION dollars easy. And it's not an inflated cost issue, studios cost thousands to run because the physical equipment is incredibly specialized. Personally, I don't want to live without beautiful recordings, and I've been doing it myself at home for long enough to know that amazing results are not going to come out of people's bedrooms. It's acoustic science.
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Anonymous Coward, 18 Aug 2010 @ 9:54am

Re: Re: Re: Re: Can't find the case but ...
Poor language on my part. Yes, the SC did decide that the First Amendment did not preclude the action complained of. However, as the court noted, state law is, of course, permitted to provide citizens with greater rights, and in the case of California such a greater right is incorporated into the state's constitution.

The more fundamental aspect of cases such as Pruneyard is the treatment of most shopping malls as quasi-public places, in which case constitutional provisions come to the fore.
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Anonymous Coward, 18 Aug 2010 @ 10:24am

Re:
"but shouldn't they?"

No. Or, at least, not necessarily. If I want to create a pleasant environment in my home, store, mall, etc., it might be a good idea to expel the, e.g., Nazi recruitment guys and the fur-is-murder protest guys.

Of course I can't stop you from saying whatever you want in public or in your own home, but I can tell you to get the hell off my property.
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Anonymous Coward, 18 Aug 2010 @ 10:27am

Re: Re: Re:
"Should I be able to manipulate what people are can talk about simply because I am able to entice them into wanting to stay on my property?"

Sure. Why not? People make trade offs all the time. You can control people talking in the movie theater because they want to stay to see the movie. You can control employees badmouthing your company because they want to keep their job.

Most people don't like such restrictions, so they'll leave of their own accord if you're very zealous in pursuing them.
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Anonymous Coward, 18 Aug 2010 @ 10:30am

Re: Re: The mall is *not* private property; it's a place of business.
Right on substance, but points deducted for spelling.
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Anonymous Coward, 18 Aug 2010 @ 10:35am

Re: Re: Can't find the case but ...
Untrue-one generally cannot take action to expel people from a BUSINESS for certain reasons-for example one generally cannot expel a person from a BUSINESS based on race or gender.
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Anonymous Coward, 18 Aug 2010 @ 10:40am

Re: Re: What Laws Are For
Bzzzzt! Wrong article. Try not opening more than one at a time.
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Anonymous Coward, 18 Aug 2010 @ 10:41am

Re: Nice sentence
Yes, because the US has a monopoly on stupid laws...

(That would be http://www.dumblaws.com)
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TtfnJohn (profile), 18 Aug 2010 @ 11:00am

Re: Re: Nice sentence
No it doesn't. We have plenty of stupid laws here in Canada, thank you very much.
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crade (profile), 18 Aug 2010 @ 11:11am

Re: Re: Re: Re:
"Sure, why not?"
I honestly don't really care personally. I just don't see the logic that makes the rules against discrimition apply on private property, and the rules protecting free speech don't.

Most people would probably have no idea that the mall has this policy at all. I'm sure in reality they would only use it as an excuse (which they don't need anyway) to get rid of the mallrats they don't like.
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Nastybutler77 (profile), 18 Aug 2010 @ 11:35am

Re: Arrest
I shouldn't have to be subjected to some overzealous high school dropout with a power-trip working as a mall cop putting his hands on me, handcuffing me, calling the police, pressing charges, etc. just because I stopped to chat with a pretty girl or ask someone directions to the nearest gas station.

Don't go to that mall and you won't be subjected to anything. That's the point I think Mike is making. If the mall has this silly policy in place, fewer people will go there and the tenents and mall owners will suffer the consequences. It's called a "free market."
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Anonymous Coward, 18 Aug 2010 @ 12:22pm

Re: Nice sentence
"[am I] the only one who thinks that is so stupid that it sounds like a US-approved patent?"

Which just goes to show that "The Government" isn't the only entity capable of stupidity on a massive scale.

So, when you are complaining about "The Government", remember that you'll get not relief from stupid boondoggles by turning to "business", "small business" or your "local community".
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John Alvarado (profile), 18 Aug 2010 @ 3:43pm

Re: The mall is *not* private property; it's a place of business.
Bad policies are self-limiting in that they reduce patronage. A rule that puts patrons off will NOT be adopted by all other businesses, as you conjecture, because avoiding such policies creates a competitive advantage. People will tend to frequent the malls/stores that DON'T have the bad policies. That's how competition in a free market works. Government need not and should not be involved.
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Yup, 18 Aug 2010 @ 5:55pm

Hmmm...
It sure seems like it is just another hit against someone whom believes in God and cares deeply about the people who don't based on their beliefs that they will spend an eternity without God in the likes of which they have never seen. Then again, the more and more selfish this world becomes, the more and more retarded it becomes. OOOPS!!! I hope I don't get arrested for using "retarded" in this context. Oh boy. I gotta watch my back.
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Paul Alan Levy (profile), 18 Aug 2010 @ 9:21pm

Not so strange
California’s application of the state constitutional protection for free speech on some kinds of privately owned privacy grows out of a US Supreme Court decision from the 1940's Marsh v Alabama, that held that in a company town, where the company required its workers to live on its property, the First Amendment’s protections for free speech on the streets of a regular town extended as well to the company town. As shopping malls began to replace downtowns as the main venue for commerce, free speech advocates began to argue for the extension of Marsh’s reasoning to shopping malls. At first, the US Supreme Court seemed receptive to that argument (the 1968 Logan Valley Plaza case), but after Chief Justice Warren was replace by Warren Burger, and other Nixon appointees took their places on the Court, the Court backed away from that proposition in such cases as Lloyd Center v Tanner (1972) and Hudgens v NLRB (1976).

However, a few states, including but not limited to California (for example, New Jersey and Oregon), have decided to apply Marsh-like reasoning to free speech in shopping malls. In fact, when California adopted its constitution, it was clear that some constitutional rights not just the right of free speech but the right of privacy as well, were intended to protect against private as well as public limits. The US Supreme Court decided in Pruneyard Shopping Center v Robins (1980) that states were free to take this position under their own laws and constitutions, even though the First Amendment is largely limited to protecting against state action.

To my mind, the fact that other malls allow free speech activities and hence might "compete" in the market for consumers wanting to receive speech messages, is not a satisfactory response. The First Amendment does not allow City A to suppress speech on the ground that the protestors can always go talk in City B. Similarly, California should be allowed to extend its constitution to provide that all malls must allow protest speech.
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Rose M. Welch (profile), 18 Aug 2010 @ 11:18pm

Re: Re: The mall is *not* private property; it's a place of business.
A rule that puts patrons off will NOT be adopted by all other businesses, as you conjecture, because avoiding such policies creates a competitive advantage.

Unless you're black, gay, or some other group that has clearly experienced blanket discrimination in a community.

In this case, I do believe that the policy would be self-limiting (Especially with an arrest; who the hell is going to shop there now?), but your statement is not true overall.
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Chargone (profile), 19 Aug 2010 @ 4:26am

Re: Re: Nice sentence
though screw ups by the latter two are somewhat easier to contest or evade, generally speaking.
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Paddy Duke (profile), 19 Aug 2010 @ 4:30am

Re: Re: What Laws Are For
I can only assume you replied to the wrong comment because if you read mine, you’ll see that I think that the mall is being really stupid in trying to limit the free speech of its customers.

But I think it’s just as stupid for the courst to be telling a private business what rules it can and can’t impose on people who are on the company’s property.

If the customers have a problem with the rule they will shop elsewhere, and the mall will either revise its position or go out of business. No need for any intervention.
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abc gum, 19 Aug 2010 @ 5:59am

Re: Hmmm...
"and cares deeply about the people who don't "

-> Megalomania
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Inventor, 19 Aug 2010 @ 6:16am

Re: Can't find the case but ...
According to the law and court rulings, malls are public accommodations, and that makes them public places.
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abd gum, 19 Aug 2010 @ 6:52am

Re: Re: Can't find the case but ...
That's funny.

You respond to a post which laments the lack of finding a reference case which might shed some light upon this subject ..... with a flip "according to the law" statement.
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Jeff Rife, 19 Aug 2010 @ 9:42am

Re: Re: Re: Re: Can't find the case but ...
Since the mall closes at night (most do, anyway), that could fit your requirement of "selective admission".

The difference between a street corner or public park and the mall is that generally there are no restrictions on when you can be on the street corner.
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Crosbie Fitch (profile), 19 Aug 2010 @ 10:05am

Re: Re: Re: Re: Re: Can't find the case but ...
I mean 'selective' as in picking and choosing which individuals to admit.

If you require the ability to eject specific individuals you should individually admit them (tickets or doorman say). If you admit the public (everyone/anyone) without consideration then you cede your premises to public occupation until such time as you wish to cease it. In such a case you lose the ability to pick and choose who you eject - you can only eject everyone as in "Ok folks, the mall is now closed to the public. Everyone leave". That's not to say you can't ask specific individuals to leave - or call the police to remedy matters.

At some point the situation changes from a collection of individual guests on private premises to the public on private premises. You can't have it both ways - invite the public, then eject unwanted guests.
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Gregg L. DesElms (profile), 19 Aug 2010 @ 10:44am

The mall's right to be private, notwithstanding its public nature
From the article in chief: "However, in the end, I still find this troubling. If the mall wants to have such a ridiculous policy, with such ridiculous results, why should the government stop them from doing so? I would imagine the mall has other rules for determining who is and who is not allowed to patronize the mall. What's wrong with letting the mall create such a silly policy?"

GREGG DesELMS's RESPONSE: Nothing's wrong with it as long as the mall is considered -- not only as a matter of law, but as a practical matter, as well -- a completely private place. But with the ubiquity of mall space in America has come its transformation, albeit involuntary, into a part of the public town square. And in THAT place, protected speech may not be silenced. As a PRACTICAL matter, the Court was correct.

______________________________________
Gregg L. DesElms
Napa, California USA
gregg at greggdeselms dot com
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Thamios, 20 Aug 2010 @ 4:27pm

Well, think about it. In it's own way, this is a government "bail out" for the mall. they would have brought themselves under, but the government stepped in and stopped it.

Except in this case, we didn't actually have to spend a ridiculous amount of money to get that done.
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