Private property, public property: shopping centers and expressive freedom in the states.

• Author: Friedelbaum, Stanley H.

1. SHIFTING LIFE STYLES AND AN UNCERTAIN LEGAL ORDER

   The growth of suburban shopping centers in the decades following the end of World War II has had far more pervasive ramifications than merely effecting a change in the ways that goods and services are displayed, dispensed, and sold. Proliferating and ever-expanding malls, usually located along or adjacent to major highways, increasingly have come to replace traditional municipalities as loci for the conduct of a host of activities.(1) No longer are "downtown" areas looked upon as the exclusive or even the principal locations for such pursuits. Instead, shopping centers have come to serve as the primary means of carrying on many businesses formerly confined to central cities.(2) With the dramatic reassignment of commercial resources and functions, earlier notions of city streets as the foremost places for the dissemination of ideas and views, often on controversial issues of political or social significance, have taken on a less compelling demeanor.(3) If shopping centers have not completely displaced specified sections of cities in fostering these and related activities, it is clear that a new era has opened, requiring reconsideration of established institutional arrangements as well as an examination of the problems that they pose.(4)

   As often happens when events outrun and outdate prevailing norms, the legal system must adapt to societal changes, especially those brought on by major shifts in public interests and attitudes. The role of shopping centers as places for those who seek to influence opinion has raised serious questions for reviewing courts--questions that often create well-nigh insoluble dilemmas.(5) Regardless of changing perceptions of appropriate locations for the conduct of community as well as commercial affairs, shopping centers remain private property, in theory if not always in fact. It is difficult to assume an easy conversion of such resources to the public domain simply because of altered outlooks and what may appear to be a more convenient way of managing businesses and providing access to speakers.(6) Technological advances and changing life styles, in themselves, do not suffice to justify such a transformation. Constitutional safeguards, linked to the protection of private property, continue to apply unless a convincing case can be made to warrant the required conversion.(7) Any device, notwithstanding its novelty and inventiveness, must be sustainable by some rudiments of minimal legality and rationality, albeit challengeable ones.

   The first attempt to provide a plausible constitutional basis for the protection of free speech guarantees on private property occurred in the mid-1940s.(8) In an oft-noted case, Marsh v. Alabama,(9) the United States Supreme Court, speaking through Justice Hugo Black, held that First and Fourteenth Amendment rights applied when the owners and operators of a company town sought to prevent the distribution of religious literature in the town's downtown business district.(10) Adhering to familiar concepts of constitutional relativism, the Court imposed a sliding scale that diminished exclusionary private interests as the owner increasingly opened the property in question to expanded public use.(11) If, as the majority maintained, the town displayed many of the attributes of a municipality, the state action requirement was satisfied for constitutional purposes in sustaining rights of free speech.(12) In fact, the Court devised a form of "public function" analysis as the basis of a state action finding.(13) To ensure an informed citizenry, the Court declared, access to information had to be "uncensored" in a decisionmaking process that affected the welfare of the community and the nation.(14) Striking a balance, citizen rights emerged as paramount when compared with those asserted by the property owner.(15) Yet Justice Black subsequently asserted, in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.,(16) that he had never intended the company town analogy to apply to a shopping center when alternative expressional outlets were available.(17)

   Despite Black's misgivings, the Court went on to redefine and to amplify a "functional equivalent" test within the limited contours described in Logan Valley where it sanctioned union picketing in a shopping center.(18) But it soon became clear that the company town analogy derived from Marsh was to be of short duration and, more significantly, that it could not be transformed and applied unqualifiedly to shopping center cases.

   By the early 1970s, the Court veered sharply away from its Logan Valley rationale when, in Lloyd Corp. v. Tanner,(19) it rejected the pleas of war protesters who sought to press their views at a local mall.(20) Logan Valley was distinguished on narrow grounds as limited to a labor dispute involving one of the center's tenants and occurring under conditions where no realistic expressional alternative existed.(21) What is more, the illusory nature of any continued reliance on Logan Valley continued to be apparent and, in time, revealed itself when, eight years after Logan Valley, the Court explicitly rejected the case as a part of its working repertoire.(22) In Hudgens v. NLRB,(23) the Court stated openly that "if it was not clear before[,] ... the rationale of Logan Valley did not survive the Court's decision in the Lloyd case."(24)

   While the distribution of a union newsletter on an employer's property passed the Court's increasingly negative review two years after Hudgens, it did so only within a nonconstitutional framework premised on a statutory "mutual aid or protection" clause in the National Labor Relations Act.(25) Thus, at the federal level, no more than minimal support existed to sustain expressive liberties on a private employer's property. This was the ultimate message conveyed despite a succession of ineffectual cases attesting to a perplexing outlook and mixed prospects. The Supreme Court's findings incontestably favored private property rights regardless of claims that other interests were germane and were worthy of serious consideration.

2. INDEPENDENT STATE GROUNDS AS CATALYSTS OF CHANGE

   It was within this bleak setting that the Supreme Court of California in 1979 moved to apply an expansive definition of free speech safeguards to a shopping center dispute. The case selected for the dramatic turnabout, Robins v. Pruneyard Shopping Center,(26) offered seemingly unexceptional challenges that paled by their lack of spirited encounters when compared with many of the contests of the 1960s.(27)

   Earlier California Supreme Court cases had recognized the expansion of shopping centers and their significance in society. The Pruneyard court acknowledged the prescient dissent of Justice Stanley Mosk in the 1974 case of Diamond v. Bland(28) where he noted the extensive use of shopping centers by the public.(29) The court in Pruneyard adopted much of the rationale in Justice Mosk's dissent and overruled the Diamond case in the process.(30) The majority in Pruneyard found that Mosk's "observations on the role of the centers in our society are even more forceful now than when he wrote."(31) Thus, the foundations for the Pruneyard decision were evident five years earlier in the Diamond dissent.

   The appellants in Pruneyard were high school students, thwarted in their efforts to solicit support for a petition protesting "a United Nations resolution against `Zionism.'"(32) Though apparently well received by the center's customers and peaceful in their activities, the students were told to leave because their conduct violated the shopping center's regulations.(33) Security personnel suggested that they resume their activities on public sidewalks at the center's perimeter.(34) Without any further exchanges or hostile demonstrations, the students complied and left the center grounds.(35) However, they subsequently filed an action seeking, unsuccessfully at the trial level, to prevent Pruneyard from continuing to deny them access.(36)

   On appeal from the lower court's judgment declining injunctive relief, the California Supreme Court undertook an examination of the arguments advanced with particular attention to the Federal Supreme Court's ruling in Lloyd Corp. v. Tanner.(37) Much depended upon construction of the rights being preserved by the Lloyd Court when it rejected the pleas of war protesters attempting to express their views at a shopping center. Central to the California court's inquiry was the weight accorded property rights as distinguished from First Amendment rights in the Federal Court's line of reasoning.(38) Were private property rights of such importance in the federal scheme as to preclude a state court from "reaching out" to invoke state constitutional provisions more protective of individual rights? Or were there paramount, recognizable state public interests that restricted shopping centers when they impinged upon rights of speech and petition? In resolving this conflict, the California court elected to emphasize what it took to be the Federal Supreme Court's primary focus on First Amendment rights rather than on the scope of the center owners' Fifth and Fourteenth Amendment rights.(39) References to the latter, the state court held, related principally to consideration of precursory factors linked to meeting state action requirements.(40)

   The California court in Pruneyard reaffirmed its reliance on independent state grounds and the speech and petition clauses of the state constitution.(41) It also held that the restrictions imposed on private property were comparable to other exercises of the police power.(42) If, then, Lloyd had not defined beyond cavil the Fifth and Fourteenth Amendment rights involved, counterpart First Amendment rights prevailed in the shopping center context.(43) The only caveat was that such rights be "reasonably exercised."(44) Concededly, no California law prescribed that...