A&A: Do we have the right to exercise 1st Amendment rights on shopping mall properties?

Q: I need to know if freedom of expression is a first amendment right on shopping mall properties They all tell me they are private property.  How can they be private property with the public running all over it? I thought the law federal and state says first amendment can’t be restricted in any way restriction deprives us of our right to free speech.

A: Unfortunately, there is no simple answer to your question.  Generally, the First Amendment applies only to government actors, and since shopping centers are often privately owned, many of the broad First Amendment rights associated with public spaces such as parks and public sidewalks do not necessarily apply.  That said, there are situations where First Amendment protections may apply, and there is a line of cases that address First Amendment rights as they pertain to “public” but privately owned spaces such as shopping centers.  

In California, the Pruneyard line of cases set forth the framework for determining whether free speech is being infringed in and around shopping malls and centers (see, e.g.,http://ift.tt/1hPq0VN). Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979).

The gist of Pruneyard is that certain areas of shopping malls are designed and used for public congregation – the modern equivalent of the town square – and should thus be treated as public fora for purposes of First Amendment analysis, which means that a much higher standard applies to speech restrictions in these areas.

This principle was recently affirmed by California’s Supreme Court, though the court made it clear that to qualify as a public forum “an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store’s merchandise and advertising displays.” Ralph’s Grocery Co. v. United Food and Comm. Workers Union Local 8, 55 Cal. 4th 1083,1093 (2012).

Other cases that discuss what restrictions to free speech may be permissible in and around shopping centers include United Brotherhood of Carpenters & Joiners of America Local 586 v. N.L.R.B., where the Ninth Circuit Court of Appeals struck down certain rules posted by the owner of a private shopping center, concluding that California law “protects expressive activities—including petitioning and picketing—conducted in privately-owned shopping centers.” 540 F.3d 957, 963 (9th Cir. 2008) (citing Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742, 745 (2007)). The court held that the rules in question were either unlawful content-based restrictions or were not sufficiently reasonable time, place, and manner restrictions. Id.

As you can see, the inquiry is necessarily fact-specific.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.