Expression on Private Property
The first attempt to provide a constitutional basis for the
protection of free expression on private property occurred
in the mid-1940s. In Marsh
v. Alabama, 326 U.S. 501 (1946), the Supreme Court
held that the owners and operators of a company town could
not prohibit the distribution of religious literature in the
town's business district because such expression was protected
by the First and 14th amendments. Id. The majority
reasoned that the town displayed many of the attributes of
a municipality; therefore the state-action requirement was
satisfied for constitutional purposes of sustaining the rights
of free expression. As stated in Marsh,
"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." In striking a balance, the Court concluded
that the free-speech rights of the individual were paramount
over the property rights asserted by the company.
The Court subsequently extended the rationale of Marsh
to peaceful picketing in a large shopping center known as
Logan Valley Mall. In Amalgamated
Food Employees Union v. Logan Valley Plaza, 391 U.S.
308 (1968), the Court considered whether non-employee union
members could be enjoined from picketing a grocery store in
a privately owned shopping center. The Court noted that the
answer would be clear "if the shopping-center premises
were not privately owned but instead constituted the business
area of a municipality." Id. at 315. " In
the latter situation, it has often been held that publicly
owned streets, sidewalks, and parks are so historically associated
with the exercise of First Amendment rights that access to
them for purposes of exercising such rights cannot be denied
Corp. v. Tanner, 407 U.S. 551, 559 (1972).
The Court determined that the shopping center involved in
was the functional equivalent of the business district involved
in Marsh. The
Court was careful, however, to limit the scope of its holding
by stating, "all we decide here is that because the shopping
center serves as the community business block and is freely
accessible and open to the people in the area and those passing
through, the state may not delegate the power, through the
use of its trespass laws, wholly to exclude those members
of the public wishing to exercise their First Amendment rights
on the premises in a manner and for a purpose generally consonant
with the use to which the property was actually put."
Id. at 319-320.
Four years later the Court reconsidered the Logan
Valley doctrine in Lloyd
Corp. v. Tanner, 407 U.S. 551. In Lloyd
the Court rejected the pleas of war protesters who sought
to express their views at a local mall. The Court distinguished
on narrow grounds, as limited to a labor dispute involving
one of the center's tenants and occurring under conditions
where no realistic alternative for expression existed. Id.
at 563-564. Neither of these elements were present in Lloyd.
The handbilling by the respondents in the malls of Lloyd Center
had no relation to any purpose for which the center was built
and being used. Rather, the message the respondents sought
to convey was directed to all members of the public and could
have been distributed in any number of public areas. Id.
at 564. Notably, the Court opined that "there is no open-ended
invitation to the public to use the Center for any and all
purposes, however incompatible with the interests of both
the stores and the shoppers whom they serve." Id.
Finally in Hudgens
v. NLRB, 424 U.S. 507 (1976), the Court explicitly
Valley, stating, "if it was not clear before,
the rationale of Logan
Valley did not survive the Court's decision in the
Id. at 518. The Supreme Court's finding in Hudgens
incontestably favored private-property rights over individual
Despite Hudgens' clear
statement of federal law, the California Supreme Court held
in Robins v. Pruneyard Shopping Center, 592 P.2d 341
(1979), that the free-speech and petition provisions of the
California Constitution grant mall visitors a constitutional
right to free speech that outweighs the private-property interests
of mall owners. The California Supreme Court took the position
that "all private property is held subject to the power
of government to regulate its use for the public welfare."
Id. at 344. In a unanimous decision, the U.S. Supreme
Court affirmed the state court's decision, noting that its
own reasoning in Lloyd
"does not ex proprio vigore limit the authority
of the State to exercise its police power or its sovereign
right to adopt in its own Constitution individual liberties
more expansive than those conferred by the Federal Constitution."
Center v. Robbins, 447 U.S. 74, 81 (1980). A state
may, therefore, in the exercise of its police power, adopt
reasonable restrictions on private property, so long as the
restrictions do not amount to a taking without just compensation
or contravene any other federal constitutional provision.
Id. I at 80-81.
Since the Court's decision in Pruneyard,
few states have recognized any state constitutional right
to free expression on private property. The scope of these
decisions is narrow. State constitutional provisions have
been held to apply in only two private-property settings:
shopping malls and non-public universities. Moreover, the
state courts have limited the situations in which these protections
are applicable to only a few, such as those involving political
To date, the New Jersey Supreme Court has provided the most
extensive and clearly articulated model for rejecting the
traditional state-action requirements by holding mall owners
accountable for violations of the state's free-speech protections.
The New Jersey Supreme Court interpreted the free-speech provisions
of their state constitution as extending to private owners
of shopping malls as well as to state action in New Jersey
Coalition Against War in the Middle East v. J.M.B. Realty
Corp., 650 A.2d 757 (1994). Prior to deciding New Jersey
Coalition Against the War, the New Jersey Supreme Court
had decided State v. Schmid, 423 A.2d. 615 (N.J. 1980),
which required the court to balance individual expression
rights with property rights in the context of free speech
at a privately owned university. Schmid articulated
three factors: (1) the nature, purpose and primary use of
such private property; (2) the extent and nature of the public's
invitation to use that property; and (3) the purpose of the
expressive activity undertaken on such property in relation
to both the private and public use of the property. After
applying the Schmid test, the New Jersey Supreme Court
reasoned that because the mall owners "have intentionally
transformed their property into a public square or market,
a public gathering place, a downtown business district, a
community," they cannot later deny their own implied
invitation to use the space as it was clearly intended. New
Jersey Coalition at 776.
In Block v. Westminster Mall Company, 819 P.2d 55
(1991), the Colorado Supreme Court found sufficient entanglement
with the government to support a finding of state action on
the part of a mall and commercial retail center. The Colorado
court noted a highly visible governmental presence in the
mall, including a police substation, military recruiting offices
and county voter-registration drives. While the court determined
that the open and public areas of the mall effectively functioned
as a public place, it left open the issue of whether some
lesser degree of governmental involvement would be sufficient
for a similar holding. Id. at 61.
Massachusetts, Oregon, Pennsylvania and Washington all initially
extended some state constitutional protection for speech on
private property, but they later scaled back the scope of
their decisions or overruled the holding altogether. The Supreme
Judicial Court of Massachusetts, for example, held that the
state constitution's free-elections provision does not require
state action and protects anyone at a shopping center collecting
petition signatures to qualify for a place on the ballot for
public office. Batchelder v. Allied Stores Int'l.,
445 N.E. 2d 590 (Mass. 1983). Only six months later, however,
in Commonwealth v. Hood, 452 N.E.2d 188 (Mass. 1983),
the same court declined to extend state constitutional protection
to speech unrelated to a pending election that was expressed
on private property. Id. In Hood, several individuals
were arrested after they attempted to distribute leaflets
advocating nonviolence and protesting nuclear war outside
a privately owned laboratory that performed nuclear testing
for the government. Id. at 190. The Pennsylvania Supreme
Court made clear that "Batchelder does not establish
that there is no state action requirement," but added,
"even if state action were not required, Batchelder
does not suggest that we would extend the constitutional protections"
beyond the shopping-mall context. Id. at 191.
In Lloyd Corp. v. Whiffen, 849 P.2d 446 (Or. 1993),
the Oregon Supreme Court opined that its citizens have a right
to seek signatures on initiative petitions in the common areas
of shopping malls, basing its decision on the initiative and
referendum powers reserved to the citizens of Oregon in Art.
IV., Section I. Id. at 453. Dramatically, however,
in Stranahan v. Fred Meyer, Inc., 11 P.3d 228 (Or.
2000), the Oregon Supreme Court reversed its earlier decision,
holding that while art. IV, § 1of the Oregon Constitution
conferred the right to propose laws via initiative, it did
not extend so far as to create a right to solicit signatures
for initiative petitions on private property, including the
petitioners privately owned shopping center. Id.
The Pennsylvania Supreme Court first articulated its position
in Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981),
by reversing trespass convictions against members of an anti-war
group who distributed leaflets on the campus of a private
college during a symposium. The court, in Tate, appeared
to hold that the Pennsylvania Constitution's free-speech and
assembly protections are not limited to state action. Yet
the same court reached the opposite conclusion five years
later in Western Pennsylvania Socialist Workers 1982 Campaign
v. Connecticut General Life Insurance Co., 515 A.2d 1331
(Pa. 1986). In that case, a shopping-mall owner was not required
to permit members of a political committee to collect signatures
for a candidate's nominating petition on mall premises. Rather
than overruling Tate, however, the court attempted
to distinguish its earlier decision by explaining that the
defendants in Tate were entitled to distribute leaflets
on the private college campus "because the college had
made itself into a public forum" by permitting the public
to "walk its campus freely and use many of its facilities"
and by "encouraging the public to attend the symposium."
Id. at 1336-1337. The shopping center, in contrast,
had not made itself a public forum. Id. at 1337.
In Alderwood Assocs. v. Washington Envtl. Council,
635 P.2d, the Washington Supreme Court concluded that its
state's constitutional speech and initiative provisions did
not require state action. Subsequently, in Southcenter
Joint Venture v. National Democratic Policy Comm., 780
P.2d 1282 (Wa. 1989), the court reversed its prior holding
and ruled that the free-speech provision of the state constitution
did not afford a political organization the right to solicit
contributions and distribute literature at the mall.
The majority of states to consider the issue have declined
to extend any right of free expression to privately owned
property. These states include Arizona (Fiesta Mall Venture
v. Mechum Recall Committee, 767 P.2d 719 (Az. 1988)),
Connecticut (Cologne v. Westfarms Assocs., 469 A.2d
1201 (Ct. 1984)), Georgia (Citizens for Ethical Gov't,
Inc. v. Gwinnett Place Assocs., 392 S.E. 2d 8 (Ga. 1990)),
Hawaii (Estes v. Kapiolani Women's and Children's Med.
Ctr., 787 P.2d 216 (Haw. 1990)), Illinois (Illinois
v. DiGuida, 604 N.E.2d 336 (Il. 1992)), Iowa (State
v. Lacey, 465 N.W.2d 537 (Iowa 1991)), Michigan (Woodland
v. Michigan Citizens Lobby, 378 N.W.2d 337 (Mich. 1985)),
Minnesota (State v. Wicklund, 589 N.W. 2d 793 (Minn.
1999)), New York (Shad Alliance v. Smith Haven Mall,
488 N.E.2d 1211 (N.Y. 1985)), North Carolina (273 S.E.2d 708
(N.C. 1981)), Ohio (Eastwood Mall, Inc. v. Slanco,
626 N.E.2d 59 (Ohio 1994)), South Carolina (Charleston
Joint Venture v. McPherson, 417 S.E.2d 5444 (S.C. 1992)),
Texas (Republican Party v. Dietz, 940 S.W.2d 86 (Tex.
1997), and Wisconsin (Jacobs v. Major, 407 N.W.2d 832
(Wis. 1987)). Given their shift in position, Oregon and Washington
are also a part of this majoritarian group. These states have
decided against reading their free-speech provisions as affirmative
rights that can be asserted against both public and private
entities. They have similarly declined to adopt a more flexible
state-action doctrine. Quite simply, these states have chosen
not to interpret their free-speech provisions as granting
any broader protection than that granted by the First Amendment.
Since not all states have explicitly addressed this issue
and some that have have changed their opinion, it is clear
that this issue will continue to be debated among state legislatures