Free exercise of speech in shopping malls: bases that support an independent interpretation of article 40 of the Maryland declaration of rights.

• Author: Fuchs, Matthew S.

1. INTRODUCTION

   Protected by both the First Amendment to the U.S. Constitution and Article 40 of the Maryland Declaration of Rights, (1) the right to free expression is one of the most sacred freedoms in our society. (2) Similarly, the rights of private property owners are highly valued. (3) Consequently, when a person seeks to engage in speech on private property, the courts often must intervene to resolve the tension between these competing rights. This tension between speech and property rights has been especially apparent when citizens have attempted to engage in expressive activities in private shopping malls.

   Although such cases have arisen in other jurisdictions, they have not yet been considered by the Maryland courts. However, when the time does come for the Maryland courts to adjudicate these competing interests, they should protect a constitutional right to engage in issue-oriented, non-disruptive speech in large shopping malls, even when these malls are privately owned.

   The Supreme Court has interpreted the First Amendment of the Federal Constitution to hold that shopping malls do not involve state action because they do not carry out functions traditionally performed by the government. (4) Notwithstanding, Maryland courts must interpret Maryland's free speech provision: Article 40 of the Declaration of Rights. Unlike the First Amendment, Article 40 should not be interpreted to require state action; rather, it should also apply to private parties, including the owners of shopping malls. Moreover, the broad speech rights conferred by Article 40 require that Maryland courts find that shopping malls are dedicated to a public function. As such, malls in Maryland should be constitutionally obligated to permit free speech. (5)

   The grounds favoring an independent state interpretation of the right to free speech are countless. (6) One recognized ground is case law from state courts that have favored independent interpretations of state constitutional provisions. (7) This Article draws from these cases, and examines a series of foundations for independent interpretation. These include: the specific text of Article 40; Maryland state traditions; Maryland state history; the merit and relevance of federal case law; and the merit and relevance of sister state case law.

   Before exploring these various bases which support an independent interpretation of Article 40, Part II introduces the state action concept and U.S. Supreme Court case law adjudicating free speech in private shopping malls. Part III follows with an examination of the merits of independent state constitutional analysis. Finally, the article applies to Article 40 the various bases for departure drawn from state court opinions and assesses the value of departing from First Amendment jurisprudence.

2. THE STATE ACTION CONCEPT AND THE U.S. SUPREME COURT'S ADJUDICATION OF THE FREE SPEECH RIGHT IN PRIVATE SHOPPING MALLS

   The Federal Constitution protects individual rights against invasions by government, or invasions that involve what has been called "state action." (8) In other words, the Federal Constitution generally does not seek to govern or regulate the affairs of private individuals. (9) The state action doctrine first arose in the Civil Rights Cases, (10) where the U.S. Supreme Court held that the Fourteenth Amendment did not authorize Congress to prohibit discrimination by inns, conveyances, and places of amusement that were privately owned. Rather, its purpose was "to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment." (11) Thus, the rights and liberties guaranteed by the Fourteenth Amendment "erect[] no shield against merely private conduct." (12)

   The Supreme Court, however, has failed to adequately explain the state action concept. The academic consensus is that the state action doctrine is a "conceptual disaster area." (13) The Court has particularly struggled to define the line of demarcation between state and private entities. (14) "Even a brief examination of state action case law reveals a profusion of controversial tests and considerations of uncertain scope." (15)

   The Court employs one of these controversial state action tests in First Amendment cases involving restrictions on speech activities on private property, such as shopping malls. Specifically, the Court has found state action "where the 'private' actor [has restricted free speech] while engaging in some function that has traditionally been reserved exclusively to the state or federal government." (16) In Marsh v. Alabama, the Court held that the guarantees of free speech in the First and Fourteenth Amendments were violated when the private owners of a company town prevented literature from being distributed in its downtown business district. (17) 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. (18)

   In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., (19) the Court expanded speech protections on private property by holding that the Federal Constitution also prevented a private shopping mall from enjoining the peaceful picketing of a business enterprise located within the mall. (20) The Court concluded that the shopping center "serves as the community business block," and in so doing, performs a public function. (21) Therefore, "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." (22) The Court stressed that it could not tolerate such exclusion because the suburban shopping center was a popular place for public congregation. (23)

   However, only four years after Logan Valley, the U.S. Supreme Court stemmed the expansion of free speech in shopping malls by holding in Lloyd Corp. v. Tanner that war protesters had no right of free speech at shopping centers. (24) Although Lloyd did not expressly overrule Logan Valley, the Court avoided the constraints of the Logan Valley decision by distinguishing the operative facts in that case. (25) Whereas in Logan Valley the picketing was based on the labor practices of a mall tenant, the handbilling in Lloyd was not related to the activities of any tenants. (26) Specifically, the speech concerned the federal government's Vietnam policy. (27) The Court limited the holding in Logan Valley to situations in which speech was related to shopping center activities. (28)

   The implications of the Supreme Court's decision in Lloyd were clarified in Hudgens v. NLRB. (29) In Hudgens, union members were threatened with arrest for criminal trespass while picketing a store with which they were involved in a labor dispute. (30) The picketers sued in federal court citing a First Amendment right to picket labor practices on their employers' property. (31) In ruling against the union members, the Court found that although it had factually distinguished Logan Valley from Lloyd, (32) the latter opinion "amounted to a total rejection of the holding in Logan Valley." (33) Indeed, the Court will not ascribe state action to the private owners of shopping malls because malls do not closely enough resemble company towns. (34)

   At the same time, the U.S. Supreme Court's holdings have acknowledged that state courts may construe the free speech provisions of their state constitutions to accord greater speech rights in malls than required by federal precedent. In Prune Yard Shopping Center v. Robins, the Court held that states could confer such rights without violating the Fifth Amendment of the Federal Constitution. (35) Chief Justice Rehnquist found nothing to suggest that forcing malls to permit speech activities would "unreasonably impair the value or use of their property as a shopping center." (36) Rehnquist added that "it is well established that 'not every destruction or injury to property by governmental action has been held to be a "taking" '"that violates the Fifth Amendment. (37) In other words, the Supreme Court permits private malls to prohibit speech because the First Amendment does not obligate the state to protect such speech. The Fifth Amendment, however, does not prevent the state from installing such protections. (38) Accordingly, the Court invited state judiciaries to use their state constitutions to depart from federal precedent and craft a more speech-protective doctrine. (39) The following section presents a series of state constitutional grounds for Maryland to depart from these federal precedents.

3. THE BASES USED BY OTHER STATE COURTS TO DEPART FROM FEDERAL PRECEDENT, AND APPLICATION OF THESE BASES TO ARTICLE 40

   To determine whether Article 40 of the Maryland Declaration of Rights obligates shopping malls to permit free speech in a manner that exceeds the requirements under the Federal Constitution, Maryland courts should consider some of the bases used by other state courts to justify departing from federal precedent. In determining which bases to apply, a helpful "starting place is [the] list of factors developed by Justice [Alan] Handler of the New Jersey Supreme Court in State v. Hunt." (40) In addition to these factors, Maryland judges should consider virtually anything else that contributes to the analysis of Article 40, even any ideological differences with the United States Supreme Court. (41)

   Before Maryland courts analyze the bases for independent interpretation of Article 40, one important question they must address is whether to presume the legitimacy of federal precedents. Two schools of thought have emerged from state opinions addressing this question. On the one hand, most state courts have found that their decisions should adhere to the federal constitutional interpretation unless there is...