On certification to the Superior Court, Appellate Division, whose opinion is reported at 266 N.J. Super. 159 (1993).
Justices Handler, O'Hern, and Stein join in this opinion. Justice Garibaldi has filed a separate Dissenting opinion in which Justice Clifford and Judge Michels join. Justice Pollock did not participate.
The opinion of the Court was delivered by WILENTZ, C.J.
The question in this case is whether the defendant regional and community shopping centers must permit leafletting on societal issues. We hold that they must, subject to reasonable conditions set by them. Our ruling is limited to leafletting at such centers, and it applies nowhere else.*fn1 It is based on our citizens' right of free speech embodied in our State Constitution. N.J. Const. art. I, PP 6, 18. It follows the course we set in our decision in State v. Schmid, 84 N.J. 535 (1980).
In Schmid we ruled that our State Constitution conferred on our citizens an affirmative right of free speech that was protected not only from governmental restraint -- the extent of First Amendment protection -- but from the restraint of private property owners as well. We noted that those state constitutional protections are "available against unreasonably restrictive or oppressive conduct on the part of private entities that have otherwise assumed a constitutional obligation not to abridge the individual exercise of such freedoms because of the public use of their property." Id. at 560. And we set forth the standard to determine what public use will give rise to that constitutional obligation. The standard takes into account the normal use of the property, the extent and nature of the public's invitation to use it, and the purpose of the expressional activity in relation to both its private and public use. This "multi-faceted" standard determines whether private property owners "may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly." Id. at 563. That is to say, they determine whether, taken together, the normal uses of the property, the extent of the public's invitation, and the purpose of free speech in relation to the property's use result in a suitability for free speech on the property that on balance, is sufficiently compelling to warrant limiting the private property owner's right to exclude it; a suitability so compelling as to be constitutionally required.
Applying Schmid, we find the existence of the constitutional obligation to allow free speech at these regional and community shopping centers clear. Although the ultimate purpose of these shopping centers is commercial, their normal use is all-embracing, almost without limit, projecting a community image, serving as their own communities, encompassing practically all aspects of a downtown business district, including expressive uses and community events. We know of no private property that more closely resembles public property. The public's invitation to use the property -- the second factor of the standard -- is correspondingly broad, its all-inclusive scope suggested by the very few restrictions
on the invitation that are claimed, but not advertised, by defendants. For the ordinary citizen it is not just an invitation to shop, but to do whatever one would do downtown, including doing very little of anything.
As for the third factor of the standard -- the relationship between the purposes of the expressional activity and the use of the property -- the free speech sought to be exercised, plaintiff's leafletting, is wholly consonant with the use of these properties. Conversely, the right sought is no more discordant with defendants' uses of their property than is the leafletting that has been exercised for centuries within downtown business districts discordant with their use. Furthermore, it is just as consonant with the centers' use as other uses permitted there. Indeed, four of these centers actually permitted plaintiff's leafletting (although it took place in only two of those).
We therefore find the existence of a constitutional obligation to permit the leafletting plaintiff seeks at these regional and community shopping centers; we find that the balance of factors clearly predominates in favor of that obligation; its denial in this case is unreasonably restrictive and oppressive of free speech: were it extended to all regional and community shopping centers, it would block a channel of free speech that could reach hundreds of thousands of people, carrying societal messages that are at its very core. The true dimensions of that denial of this constitutional obligation are apparent only when it is understood that the former channel to these people through the downtown business districts has been severely diminished, and that this channel is its practical substitute.
We hold that Schmid requires that the free speech sought by the plaintiff -- the non-commercial leafletting and its normal accompanying speech (without megaphone, soapbox, speeches, or demonstrations) -- be permitted by defendants subject to such reasonable rules and regulations as may be imposed by them. This free speech can be, and we have no doubt will be, carefully controlled by these centers. There will be no pursuit or harassment
of shoppers. Given this limited free speech right -- leafletting, given the centers' broad power to regulate it, and given experience elsewhere, we are confident that it is consonant with the commercial purposes of the centers and the varied purposes of their shoppers and non-shoppers.
We recognize the concerns of the defendants, including their concern that they will be hurt. Those concerns bear on the extent and exercise of the constitutional right and we have addressed them in this opinion. We recognize the depth and legitimacy of those concerns even apart from their constitutional relevance. Defendants have expended enormous efforts and funds in bringing about the success of these centers. We hope they recognize the legitimacy of the constitutional concern that in the process of creating new downtown business districts, they will have seriously diminished the value of free speech if it can be shut off at their centers. Their commercial success has been striking but with that success goes a constitutional responsibility.
Without doubt, despite the fact that the speech permitted -- leafletting -- is the least obtrusive and the easiest to regulate, and despite the centers' broad power to regulate, some people will not like it, any more perhaps than they liked free speech at the downtown business districts. Dislike for free speech, however, has never been the determinant of its protection or its benefit. We live with it, we permit it, as we have for more than two hundred years. It is free speech, it is constitutionally protected; it is part of this State, and so are these centers.
In the summer and fall of 1990 our government and our country were debating what action, if any, should be taken in response to Iraq's invasion of Kuwait. The issue eclipsed all others. The primary competing policies were military intervention and economic sanctions. On November 8, President Bush announced a major increase in the number of troops stationed in Saudi Arabia and the Persian Gulf in order to provide "an adequate offensive military option." President's News Conference, 26 Weekly Comp.
Pres. Doc. 1789, 1792 (Nov. 8, 1990). Plaintiff -- a coalition of numerous groups*fn2 -- opposed military intervention and sought public support for its views. For that purpose, plaintiff decided to conduct a massive leafletting campaign on November 9 and November 10, urging the public to contact Congress to persuade Senators and Representatives to vote against military intervention. The November 9 effort was aimed at commuter stops around the State.*fn3 The November 10 targets were shopping centers, the ten very large regional and community shopping centers whose owners are the defendants herein.
On November 9, plaintiff -- aware of the shopping centers' probable refusal -- sought judicial relief ordering the centers to permit
the leafletting. That effort was unsuccessful. The trial court ruled that plaintiff had failed to prove refusal; appellate review was also unsuccessful.
On November 10 plaintiff's members and representatives went to the malls and requested permission to leaflet. Four of the defendant malls granted plaintiff permission to leaflet on their premises, and plaintiff did in fact leaflet at two of those malls. Monmouth Mall initially denied plaintiff's request, but later issued plaintiff a permit to use its community booth for two days in January, and even provided professional signs and displays for the group. Plaintiff used the booth on those days. The conditions imposed by mall management, however, made it difficult for plaintiff to reach the public. Among other restrictions, plaintiff was not allowed to approach passersby to offer them literature. The Mall at Mill Creek, Cherry Hill Mall, and Woodbridge Center granted plaintiff permission to use their community booths, but required that plaintiff obtain or show proof of liability insurance in the amounts of $1,000,000 for bodily injury and $50,000 to $1,000,000 for property damage. Plaintiff was unable to obtain the necessary insurance, and requested that the malls waive the requirement. Woodbridge Center waived the insurance requirements, allowing plaintiff to distribute leaflets from a table, while The Mall at Mill Creek and Cherry Hill Mall refused.
Although the six remaining malls refused permission, one of those malls -- Hamilton -- ultimately allowed plaintiff to leaflet. While it initially denied permission, asking plaintiff to leave the premises, it eventually allowed plaintiff to leaflet undisturbed for approximately three to four hours.
As a consequence of defendants' refusal to allow plaintiff access to the malls, and the restrictions imposed on such access where allowed, few of the thousands of people at those malls on November 10 learned of plaintiff's views.
Plaintiff again sought emergent judicial relief ordering the centers to permit its members to leaflet in support of their view that those forces already deployed refrain from any military
action. Relief was again denied, both at the trial and appellate level. Plenary trial of the substantive issue of plaintiff's right to leaflet on defendants' premises was thereafter held, but by then the military intervention had occurred and the engagement was over.*fn4
Each of the ten defendant shopping centers is very large. For instance, one defendant mall, Woodbridge Center, serves an area with a population of 1,400,000. On an average day in 1990, approximately 28,750 people shopped there. November 10, 1990, however, was not an average day. Not only was the tenth a Saturday, a day that is generally very busy for shopping malls, but it was also part of Veterans' Day weekend. Thus, presumably many more people visited malls on that day than on an average day. Indeed, plaintiff's witnesses testified that they sought to leaflet on that day because of the large expected turnout of shoppers during the holiday weekend.
Nine of the defendant shopping centers are "regional centers." A regional shopping center is defined in the industry as one that
provides shopping goods, general merchandise, apparel, furniture and home furnishings in full depth and variety. It is built around the full-line department store, with a minimum GLA [gross leasable area]*fn5 of 100,000 square feet, as the major drawing power. For even greater comparative shopping, two, three or more department stores may be included. In theory a regional center has a GLA of 400,000 square feet, and can range from 300,000 to more than 1,000,000 square feet.
[National Research Bureau, Shopping Center Directory 1994, Eastern Volume (1993).]
The regional centers involved in this case have from 93 to 244 tenants, including not only department stores, but also restaurants and other retail and business establishments, such as art galleries, automotive centers and gas stations, banks, brokerage houses and finance companies, leisure and entertainment centers, optical centers, travel agencies, hair salons, shoe repair shops, theaters, ticket agents, insurance agencies, doctors' offices, and a United States postal booth during the holiday seasons. One housed a United States Post Office substation until approximately 1990. Each mall is surrounded by parking facilities that hold from 3,075 to 9,000 vehicles. The acreage of the regional centers ranges from 31.44 to 238 acres.
The tenth defendant is a "community" shopping center. A community center is smaller than a regional center and lacks the variety of merchandise available at a regional mall. The industry defines a community center as one that includes
a wide range of facilities for the sale of soft lines (apparel) and hardlines (hardware, appliances, etc.). . . . It is built around a junior department store, variety store or discount department store although it may have a strong specialty store. The typical size of a community center is 150,000 square feet. In practice a community center can range from 100,000 to 300,000 square feet.
The only community center involved in this case, the Mall at Mill Creek, covers twenty-seven acres. It has a discount department store, a supermarket, sixty-two smaller retail stores, and a seven-restaurant food court.
All of the defendant shopping centers are enclosed malls -- enclosures covering not only the tenants of all kinds but also substantial common areas linking them and providing space for people to congregate. In those malls where plaintiff was refused permission to leaflet, the refusal was absolute; plaintiff was denied access to the enclosed areas as well as the parking lots and sidewalks outside of the enclosures.
Although each mall asserts that it does not resemble a downtown business district, like those districts, each of these malls employs or uses part-time (or in some cases, on-duty) municipal
police officers, usually in uniform and armed. Quakerbridge Mall houses a municipal police substation. Police officers, almost always off-duty, patrol the inside of Cherry Hill Mall, Woodbridge Center, Livingston Mall, and the Mall at Short Hills. The interiors of Rockaway Townsquare Mall and Monmouth Mall are patrolled by on-duty municipal police officers. Some of the malls (such as Riverside and Monmouth) hire off-duty police officers for traffic control when necessary. Most of the malls' parking lots are patrolled by municipal police officers.
Each of the defendants permits and encourages a variety of non-shopping activities on its premises.*fn6 Six of the malls provide access to community groups. Riverside Square Mall has a meeting room, with an occupancy of 150 persons, that is available to the public. Monmouth Mall rents a civic auditorium to various organizations. Monmouth Mall also has a community booth from which various groups are allowed to espouse their causes, distributing leaflets and literature to passersby. Hamilton, the Mall at Mill Creek, Cherry Hill Mall, and Woodbridge Center provide similar community booths.
Some of the non-shopping activities permitted by defendants involved speech, politics, and community issues. Some of these activities, moreover, have been permitted by the very defendants who denied plaintiff permission to leaflet. For example, Rockaway Townsquare Mall held a Crime Prevention Day, has hosted community weekends, and allowed one of plaintiff's constituent members, Morris County SANE/FREEZE, to participate. Livingston Mall also has sponsored community weekends where civic groups were allowed to position themselves in the common area of the mall, distribute literature and speak about issues relevant to their causes, and Quakerbridge has hosted a similar community day.
In addition to sponsoring community weekends or days, these malls have sponsored other events that included political speech or concerned issues of civic importance. Livingston Mall allowed a voter registration drive to be conducted by the League of Women Voters, and sponsored a Child ID Day with the Livingston Police. Rockaway Townsquare Mall sponsored a voter registration drive in conjunction with the Morris County Republican party, and a United Way Day of Caring where sixty-seven agencies distributed information on diverse topics, such as substance abuse, homelessness, hunger, literacy, and youth counselling. Local officials and dignitaries participated in the "kick-off" for that event. Quakerbridge Mall hosted an exhibition of local municipal groups with the Mall's Merchants Association and Lawrence Township.
The remaining malls have permitted similar events. For example, Cherry Hill Mall allowed Senator Bill Bradley's office to conduct a voter registration drive in the fall of 1990. Woodbridge Center allowed Senator Bradley to walk through its mall greeting and shaking hands with its patrons in the summer of 1990 when he was running for re-election. Both Cherry Hill Mall and Woodbridge Center allowed the Marines to sponsor "Toys for Tots" drives. Woodbridge Center's press release stressed that the focus of the event would be on children whose mothers or fathers were serving in the Persian Gulf. The Mall at Mill Creek allowed the New Jersey Prosecutor's Victim and Witness Association to present information for crime victims, allowed a Bradley for United States Senate Voter Registration Drive to be held, and allowed military recruitment by the United States Naval Sea Cadets and the United States Army.
Monmouth Mall sponsored a Spring Community Fair, held a Berlin Wall Exhibit, allowed free "Video Postcards From Home" to the Persian Gulf troops to be taped on its premises, and has a senior citizen activity network office. Riverside Square Mall allowed Senator Bradley's office to conduct a non-partisan voter registration drive. Riverside Square also sponsored a United States Marine Corps "Toys for Tots" drive, a Bergen County
Read-In Festival, which involved the participation of local officials, and an Earth Day Celebration with local and national environmental organizations. Hamilton Mall hosted a Coastal Cops Celebration Holiday. This program, which is coordinated by the mall and local businesses, gives children ages six to twelve the opportunity to participate in a clean-up effort of the area's beaches.
Furthermore, based on statements at oral argument (and on our own experience) we deem it likely that defendants permit candidates, accompanied as always by a few aides, to seek support by walking through the mall, approaching shoppers, offering a handshake, and saying a few words (or more) to each. We would be surprised if those aides did not have leaflets available.
Despite the myriad of permitted uses, including many involving the distribution of issue-oriented literature -- leaflets -- and accompanying speech, despite the explicit permission given to plaintiff to leaflet at four of them, and despite the display of tenants' posters at most of them, posters that were visible from the common areas and expressed support for our armed forces in the Persian Gulf, all of the centers claim to prohibit issue-oriented speech and leafletting.
Defendants presented evidence that issue-oriented free speech, and especially controversial free speech, conflicted with their commercial purpose: that purpose is to get as many shoppers as possible on the premises and to provide an atmosphere that would encourage buying. Leafletting, speaking, and the assumed related consequences of such actions, were described as in conflict with shopping, particularly impulse buying, a major goal of such centers. If designed to prove probable financial loss, the evidence was unpersuasive. At malls of this size, carefully regulated leafletting, limited in duration and frequency, and permitted only in selected areas, seems unlikely to have the slightest impact on actual revenues, even if some shoppers dislike it. At most the impact would be negligible. Despite plaintiff's assertion that California's shopping centers, where leafletting has been permitted since 1979, have suffered no adverse financial consequences
whatsoever, defendants suggested nothing concrete to the contrary.*fn7 And the same is true of Bergen Mall, apparently a regional shopping center, where issue-oriented leafletting has been permitted since 1984 by virtue of a trial court injunction (and where plaintiff leafletted against our Persian Gulf military involvement).
At the plenary trial, plaintiff sought a permanent injunction restraining defendants from preventing or interfering with plaintiff's free speech activities, subject to reasonable conditions. It claimed this substantive right to free speech under
New Jersey's Constitution as well as at common law. No claim of right was made under the Federal Constitution. Plaintiff also challenged specific regulations imposed by some of the malls including: 1) content-based regulations prohibiting offensive speech, 2) requirements that the group seeking access to the mall obtain insurance, 3) regulations prohibiting people engaging in expressive activity from approaching mall visitors and 4) arbitrary limitations on mall access.
The trial court entered judgment in favor of defendants, denying all relief, on the ground that defendants' property was dedicated solely to commercial uses inconsistent with political speech; that the invitation to the general public was limited to such use; and that, therefore, under our ruling in State v. Schmid, 84 N.J. 535 (1980), no State constitutional right of free speech on defendants' premises existed. New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 266 N.J. Super. 195 (Ch. Div. 1993). The trial court ruled, in effect, that defendants retained the right to exclude those
not invited to its premises to the same extent as any other private property owner. Given that judgment, the trial court found it unnecessary to rule on defendants' contention that the relief sought by plaintiff, if granted, would constitute a taking of their property without just compensation, would deprive them of their property without due process of law, and would abridge their freedom of speech by forcing them to provide a forum for the speech of others, all in violation of the Federal and State Constitutions. The Appellate Division affirmed, relying substantially on the trial court's findings and opinion. 266 N.J. Super. 159 (1993).
We granted both plaintiff's petition for certification and cross-petitions filed by two of the defendants. 134 N.J. 564 (1993). We reverse, and declare that plaintiff has a State constitutional right to leaflet at defendants' shopping centers, subject to reasonable conditions, and that such right does not infringe on any constitutional right asserted by defendants.
Before reaching our Discussion of the law, we must first examine the background against which this question is raised. We know its most important outline. Regional and community shopping centers significantly compete with and have in fact significantly displaced downtown business districts as the gathering point of citizens, both here in New Jersey and across America.
Statistical evidence tells the story of the growth of shopping malls. In 1950, privately-owned shopping centers of any size numbered fewer than 100 across the country. Steven J. Eagle, Shopping Center Control: The Developer Besieged, 51 J. Urb. L. 585, 586 (1974). By 1967, 105 of the larger regional and super-regional malls existed. This number increased to 199 in 1972 and to 333 in 1978. Thomas Muller, Regional Malls and Central City Retail Sales: An Overview, in Shopping Centers: U.S.A. 180, 189 (George Sternlieb & James W. Hughes eds., 1981). By 1992, the number expanded to at least 1,835. Shopping Center World/NRB
1992 Shopping Center Census, Shopping Center World, Mar. 1993, at 38.*fn8 Thus, from 1972 to 1992 the number of regional and super-regional malls in the nation increased by roughly 800%. In New Jersey, the number of malls greater than 400,000 square feet, or, roughly, the number of regional and super-regional malls, has more than doubled over the last twenty years, increasing from 30 in 1975 to 63 in 1992. Shopping Center Census. . ., Shopping Center World, Jan. 1977, at 21; Shopping Center World/NRB 1992 Shopping Center Census, supra, at 46.
The share of retail sales attributable to regional and super-regional malls has demonstrated a similar pattern. Nationally, regional malls' market share of "shopper goods sales" was 13% in 1967 and 31% in 1979. Muller, supra, at 187. In 1991 retail sales in "shopping centers," a category that includes not only regional malls but other types of urban and suburban retail centers, "accounted for over 56% of total retail sales in the United States, excluding sales by automotive dealers and gasoline service stations." International Council of Shopping Centers, The Scope of the Shopping Center Industry in the United States, 1992-1993, at 1 (1992). In New Jersey in 1991, retail sales in shopping centers constituted 44% of non-automotive retail sales. Id. at 34.
Thus, malls are where the people can be found today. Indeed, 70% of the national adult population shop at regional malls and do so an average of 3.9 times a month, about once a week. Id. at 1. Therefore, based on adult population data from the 1990 census,*fn9 more than four million people on average shop at our regional
shopping centers every week, assuming New Jersey follows this national pattern.
The converse story, the decline of downtown business districts, is not so easily documented by statistics. But for the purposes of this case, we do not need statistics. This Court takes judicial notice of the fact that in every major city of this state, over the past twenty years, there has been not only a decline, but in many cases a disastrous decline. This Court further takes judicial notice of the fact that this decline has been accompanied and caused by the combination of the move of residents from the city to the suburbs and the construction of shopping centers in those suburbs. See Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 515 A.2d 1331, 1336 (Pa. 1986) ("Both statistics and common experience show that business districts, particularly in small and medium sized towns, have suffered a marked decline. At the same time, shopping malls, replete with creature comforts, have boomed.").
That some downtown business districts have survived, and indeed thrive, is also fact, demonstrated on the record before us. The overriding fact, however, is that the movement from cities to the suburbs has transformed New Jersey, as it has many states. The economic lifeblood once found downtown has moved to suburban shopping centers, which have substantially displaced the downtown business districts as the centers of commercial and social activity.
The defendants in this case cannot rebut this observation. Indeed, the shopping center industry frequently boasts of the achievement. The industry often refers to large malls as "'the new downtowns.'" Note, Private Abridgment of Speech and the State Constitutions, 90 Yale L.J. 165, 168 n.19 (1980) (quoting Shopping Center World, Feb. 1972, at 52). It correctly asserts that "the shopping center is an integral part of the economic and social fabric of America." International Council of Shopping Centers, The Scope of the Shopping Center Industry in the United States, 1992-1993, ix (1992).
Industry experts agree. One recent study asserted "the suburban victory in the regional retail war was epitomized by the enclosed regional mall. . . . [Regional malls] serve as the new 'Main Streets' of the region -- the dominant form of general merchandise retailing." James W. Hughes & George Sternlieb, Rutgers Regional Report Volume III: Retailing and Regional Malls 71 (1991). Beyond that, one expert maintains that shopping centers have "evolved beyond the strictly retail stage to become a public square where people gather; it is often the only large contained place in a suburb and it provides a place for exhibitions that no other space can offer." Specialty Malls Return to the Public Square Image, Shopping Center World, Nov. 1985, at 104.
Most legal commentators also have endorsed the view that shopping centers are the functional equivalent of yesterday's downtown business district. E.g., James M. McCauley, Comment, Transforming the Privately Owned Shopping Center into a Public Forum: PruneYard Shopping Center v. Robins, 15 U. Rich. L. Rev. 699, 721 (1981) ("Privately-owned shopping centers are supplanting those traditional public business districts where free speech once flourished."); Note, Private Abridgment of Speech and the State Constitutions, supra, 90 Yale L.J. at 168 ("The privately held shopping center now serves as the public trading area for much of metropolitan America.").
Statisticians and commentators, however, are not needed: a walk through downtown and a drive through the suburbs tells the whole story. And those of us who have lived through this transformation know it as an indisputable fact of life, and that fact does not escape the notice of this Court.
We shall briefly summarize the lengthy history of the law of free speech that underlies this case. The relevant historical starting point is Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946). In Marsh, the United States Supreme Court held that the First Amendment's guarantee of free speech was
violated when the private owners of a company town prevented distribution of literature in its downtown business district. 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. In a democracy, the Court recognized, citizens "must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored." Id. at 508, 66 S. Ct. at 280, 90 L. Ed. at 270. The paramount right of the citizens to be informed overrode the rights of the property owners in the constitutional balance. Id. at 509, 66 S. Ct. at 280, 90 L. Ed. at 270.
The question whether citizens may exercise a right of free speech at privately-owned shopping centers without permission of the owners has been litigated extensively. The first time the question came before the Supreme Court, the Court upheld the right of free speech at shopping centers. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 325, 88 S. Ct. 1601, 1612, 20 L. Ed. 2d 603, 616 (1968). Clearly relying on Marsh, the majority in Logan Valley ruled that shopping centers are the functional equivalent of downtown business districts and that the private owners could therefore not interfere with the exercise of the right of free speech. For First Amendment purposes that interference constituted "state action." The Court implied, but did not hold, that an unrestricted free speech right existed. Logan Valley was thereafter "limited" by Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972), which held that war protesters had no right of free speech at shopping centers. The Court distinguished Logan Valley, confining it to the situation in which the speech was related to shopping center activities -- a labor dispute involving one of the center's tenants -- and in which no alternative was available for the expression of views, id. at 563, 92 S. Ct. at 2226, 33 L. Ed. 2d at 139-40 -- such as the public sidewalks that surrounded the center in
The Court in Hudgens v. NLRB, 424 U.S. 507, 517-18, 96 S. Ct. 1029, 1035-36, 47 L. Ed. 2d 196, 205-06 (1976), reviewing both Logan Valley and Lloyd, concluded not only that the reasoning of the latter amounted to a total rejection of the former, but that even the limited right of free speech (namely, that relating to shopping center activities) approved in Lloyd did not exist. That view was reaffirmed in PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 2040-41, 64 L. Ed. 2d 741, 751-52 (1980). Those cases, Hudgens and Pruneyard, essentially held that the First Amendment right found in Marsh was limited to a privately-owned factory town, an entity that performed substantially all of the functions of government. Its actions were therefore akin to "state action," thereby triggering First Amendment protection. Not so the actions of shopping centers, whose functional equivalence to a town was limited to the downtown business district.
It is now clear that the Federal Constitution affords no general right to free speech in privately-owned shopping centers, and most State courts facing the issue have ruled the same way when State constitutional rights have been asserted. Fiesta Mall Venture v. Mecham Recall Comm., 767 P.2d 719 (Ariz. Ct. App. 1989); Cologne v. Westfarms Assocs., 469 A.2d 1201 (Conn. 1984); Citizens for Ethical Gov't v. Gwinnet Place Assoc., 392 S.E.2d 8 (Ga. 1990); Woodland v. Michigan Citizens Lobby, 378 N.W.2d 337 (Mich. 1985); SHAD Alliance v. Smith Haven Mall, 488 N.E.2d 1211 (N.Y. 1985); State v. Felmet, 273 S.E.2d
708 (N.C. 1981); Eastwood Mall v. Slanco, 626 N.E.2d 59 (Ohio 1994); Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 515 A.2d 1331 (Pa. 1986); Charleston Joint Venture v. McPherson, 417 S.E.2d 544 (S.C. 1992); Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989); Jacobs v. Major, 407 N.W.2d 832 (Wis. 1987). In most of those decisions, the courts analyzed their state constitutions and concluded that their free speech provisions protected their citizens only against state action. E.g., SHAD Alliance, supra, 488 N.E.2d 1211; Slanco, supra, 626 N.E.2d 59; Southcenter Joint Venture, supra, 780 P.2d 1282. Others relied on federal constitutional doctrine without independently analyzing their state constitutions. E.g., Citizens for Ethical Gov't, supra, 392 S.E.2d 8; Felmet, supra, 273 S.E.2d 708.
California, Oregon, Massachusetts, Colorado, and Washington, however, have held that their citizens have a right to engage in certain types of expressive conduct at privately-owned malls. Of those five, only California has held that its free speech clause protects citizens from private action as well as state action and grants issue-oriented free speech rights at a regional shopping center. Robins v. PruneYard Shopping Ctr., 592 P.2d 341, 347 (Cal. 1979), aff'd, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980). Massachusetts and Oregon relied on clauses other than their free speech clauses. Batchelder v. Allied Stores Int'l, 445 N.E.2d 590, 593 (Mass. 1983) (relying on state constitution's "free-and-equal elections" provision); Lloyd Corp. v. Whiffen, 849 P.2d 446, 453-54 (Or. 1993) (Whiffen II) (relying on state constitution's initiative and referendum provision and declining to address whether free speech clause was also source of right to collect signatures at mall). Colorado relied on its constitution's free speech provision to hold that political activists had a constitutional right to distribute literature at a privately-owned mall. Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991). The Bock court, however, did not dispense with a state action requirement for its free speech provision; rather, the
court found that the mall that sought to prohibit the distribution of literature was a state actor. Id. at 62.
The Washington Supreme Court has done an about-face on this issue. In Alderwood Associates v. Washington Environmental Council, 635 P.2d 108 (1981), a majority of the court reversed an injunction prohibiting a group from collecting signatures at a mall, but only a four-Justice plurality concluded that the state constitution's free speech clause did not have a state action requirement. In Southcenter Joint Venture, supra, 780 P.2d 1282, the court, again deeply divided, rejected the plurality position in Alderwood and held that the state's free speech provision does not protect speech on private property. However, the remainder of the holding in Alderwood -- that there was a right to solicit signatures on private property under the state constitution's initiative provision -- was not disturbed. Id. at 1290.
Pennsylvania's position on the free speech/state action issue appeared, at one time, to accord with ours in Schmid. In Commonwealth v. Tate, 432 A.2d 1382 (1981), the Pennsylvania Supreme Court held that the state constitution's free speech provision prohibited a private university from preventing people from leafletting outside a university building in which a public symposium was being held. The court specifically held that "the state may reasonably restrict the right to possess and use property in the interests of freedom of speech, assembly, and petition." Id. at 1390. Thus, the court seems to have held that there is no state action requirement in its free speech provision. In Western Pennsylvania Socialist Workers 1982 Campaign, supra, 515 A.2d 1331, however, the same court expressly stated that the state's free speech clause provided protection only from state action, id. at 1335, and held that there is no constitutional right to collect signatures in a privately-owned shopping mall. Id. at 1339. While not overruling its previous Tate decision, the Court distinguished it by concluding that the private college in Tate had turned itself into a public forum. Id. at 1337.
From these cases we learn that the Federal Constitution does not prevent private owners from prohibiting free speech leafletting at their shopping centers because the owners' conduct does not amount to "state action"; that practically every state, when its constitutional free speech provisions have been asserted, has ruled the same way, again on the basis of a legal Conclusion that state action was required. We are not out-of-step, however, for as detailed above, every state that has found certain of its constitutional free-speech-related provisions effective regardless of "state action" has ruled that shopping center owners cannot prohibit that free speech. There have been four such rulings: California (general free speech provision), Massachusetts (free and equal election provision), Oregon (initiative and referendum provision), and Washington (initiative provision). Put differently, no state with a constitutional free-speech-related provision unencumbered by any "state action" requirement has allowed shopping centers to prohibit that speech on their premises. Colorado is apparently the only state that found its constitutional "state action" requirement satisfied in the shopping center context, and ruled on that ground that the owners' denial was unconstitutional and required that leafletting be permitted.
In New Jersey, we have once before discussed the application of our State constitutional right of free speech to private conduct. In State v. Schmid, 84 N.J. 535 (1980), appeal dismissed sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982), we held that the right conferred by the State Constitution was secure not only from State interference but -- under certain conditions -- from the interference of an owner of private property even when exercised on that private property. Id. at 559. Specifically, we held that Schmid, though lacking permission from Princetown University, had the right to enter the campus, distribute leaflets, and sell political materials. We ruled that the right of free speech
could be exercised on the campus subject to the University's reasonable regulations.
We thus held that Article I, paragraph 6 of our State Constitution granted substantive free speech rights, and that unlike the First Amendment, those rights were not limited to protection from government interference. In effect, we found that the reach of our constitutional provision was affirmative. Precedent, text, structure, and history all compel the Conclusion that the New Jersey Constitution's right of free speech is broader than the right against governmental abridgement of speech found in the First Amendment. Our holding in Schmid relied on all of these factors, id. at 557-60, presaging the criteria of later cases used to determine whether the scope of state constitutional provisions exceeded those of cognate federal provisions. E.g., State v. Hunt, 91 N.J. 338, 358-68 (1982) (Handler, J., Concurring) (explaining principles for interpreting State constitutional provisions).
In this case, we continue to explore the extent of our State Constitutional right of free speech. We reach the same Conclusion we did in Schmid : the State right of free speech is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities. Schmid, supra, 84 N.J. at 560. Applying the standard developed in Schmid to this very different case, we decide today that defendants' rules prohibiting leafletting violate plaintiff's free speech rights.
We found in Schmid that Princeton University, in pursuit of its own educational mission, had invited the public to participate in the intellectual life of the University in various ways, including participation in Discussions of current and controversial issues. The University not only underlined its interest in free speech in various statements of policy, but in the imperative of extending participation beyond the student body so that both different views [138 NJ Page 354] and groups would be heard. We found that this invitation included participation in various formal meetings of committees and clubs, invitations to both specific individuals and groups outside of the University body, and on occasion general invitations to the public. We held that all of these factors had the effect of opening up Princeton's property to a limited public use and that the activity sought to be carried on by Schmid was consonant with that use. Schmid, supra, 84 N.J. at 564-66.
The balancing of the various factors of the Schmid standard guided our determination. We also considered alternative channels available to Schmid for the communication of his ideas, not to determine the existence of a right, but rather to evaluate the extent to which Princeton could regulate that right. Given all of those premises, we concluded that Schmid's entry on the University's lands was not a trespass and reversed his conviction, based on our Conclusion that Schmid had the right of free speech on Princeton's property. We held further that Princeton's attempts to regulate and condition speech, as those regulations and conditions then existed, were invalid because they were applied without standards. But we affirmed the underlying right of Princeton to adopt reasonable regulations concerning the time, manner, and place of such speech. Id. at 567-68.
Schmid set forth "several elements" to be considered in determining the existence and extent of the State free speech right on privately-owned property. The three factors mentioned in that opinion as the "relevant considerations," id. at 563, have been the focus of the argument before us. As we noted in that case:
This standard must take into account (1) the nature, purposes, and primary use of such private property, generally, its "normal" use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property. This is a multi-faceted test which must be applied to ascertain whether in a given case owners of private property may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly.
The balancing of the three factors and the ultimate balance between expressional rights and private property rights was a matter of concern in Justice Schreiber's concurrence in Schmid. Noting uncertainty about whether the majority based its constitutional holding on "a balancing process" or on a "dedication to the public of its property," id. at 576 & n.1, the concurrence concluded that the dedication of private property "for a public use involving public Discussion," id. at 580, was essential to justify our holding. We need not, however, examine what a dedication to the public for public Discussion really means, for there is no property more thoroughly "dedicated" to public use than these regional and community shopping centers, a public use so pervasive that its all-embracing invitation to the public necessarily includes the implied invitation for plaintiff's leafletting.
In this case, the trial court held that the Schmid standard was not satisfied and, therefore, that the plaintiff had no constitutional right to leaflet at defendants' premises. New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 266 N.J. Super. 195 (Ch. Div. 1993). Specifically, after analyzing the proofs, it found that the common areas were not open to the public generally, but rather that "the public's invitation to each of the defendant malls is for the purpose of the owners' and tenants' business and does not extend to the activities of leafletting or the distribution of literature." Id. at 203. Furthermore, it found that the plaintiff failed to prove that the proposed activity was not discordant with the "uses to which these shopping malls are dedicated." Id. at 204. If one focuses only on the owners' "purpose" and "dedication," these findings are literally correct.
Given those findings, the trial court and the Appellate Division concluded that the requirements of Schmid were not met. They presumably believed that it would be inappropriate to further probe the possible constitutional implications of Schmid when applied to this very different case in a novel, debatable, and most
important area of constitutional law. The tradition of our judiciary under those circumstances is generally to leave constitutional determinations of that kind to this Court, and the lower courts did just that.
However, the lower courts' holdings and the defendants' view of the second factor of Schmid -- "the extent and nature of the public's invitation to use that property" -- misperceive both its essential meaning and the functional role of the standard in determining the outcome of the constitutional issue. The factual issue is the overall nature and extent of the invitation to the public, not somehow restricted to the subjective "purpose" of defendants' uses, and certainly not limited to whether defendants extended an explicit invitation to plaintiff to speak. The issue is whether defendants' actual conduct, the multitude of uses they permitted and encouraged, including expressive uses, amounted to an implied invitation and, if so, the nature and extent of that invitation. The functional role of the standard and its three elements is to measure the strength of the plaintiff's claim of expressional freedom and the strength of the private property owners' claim of a right to exclude such expression -- all for the ultimate purpose of "achieving the optimal balance between the protections to be accorded private property and those to be given to expressional freedoms exercised upon such property." Schmid, supra, 84 N.J. at 562.
We reaffirm our holding in Schmid. The test to determine the existence of the constitutional obligation is multi-faceted; the outcome depends on a consideration of all three factors of the standard and ultimately on a balancing between the protections to be accorded the rights of private property owners and the free speech rights of individuals to leaflet on their property.
We now examine the standard and determine the resulting balance in this case between free speech and private property rights. We find that each of the elements of the standard and
their ultimate balance support the Conclusion that leafletting is constitutionally required to be permitted.
The normal use of these properties and the nature and extent of the public's invitation to use them (the first two elements) are best considered together, for in this case they are most closely interrelated. Our view of these two factors -- the normal use and the nature and extent of the invitation to use -- is primarily factual, but also constitutional. Factually, we find an implied invitation to leaflet. Though more complex, ultimately its existence in this case is at least as clear as it was in Schmid. Constitutionally, these two elements of the standard point strongly in the direction of a constitutional right.
The predominant characteristic of the normal use of these properties is its all-inclusiveness. Found at these malls are most of the uses and activities citizens engage in outside their homes. That predominant characteristic is not at all changed by the fact that the primary purpose of the centers is profit and the primary use is commercial. Within and without the enclosures are not only stores of every kind and size, but large open spaces available to the public and suitable for numerous uses. There is space to roam, to sit down, and to talk. The public is invited to exercise by walking through the centers before the retail stores have opened for business. There are theaters, restaurants, professional offices, meeting rooms, and almost always a community table or booth where various groups can promote causes and different activities taking place within their local area.
The invitation to the public is simple: "Come here, that's all we ask. We hope you will buy, but you do not have to, and you need not intend to. All we ask is that you come here. You can do whatever you want so long as you do not interfere with other visitors." Loitering may be "discouraged" but the record does not contain even one instance of someone ejected on that basis. That policy, if indeed it exists, has not made the slightest dent in the centers' all-embracing invitation to come there. The multitude of non-shoppers testifies to the success of this invitation, and it is a
"success" because the centers know that the phenomenon of "impulse buying" will make shoppers out of many of these non-shoppers. So people go there just to meet, to talk, to "hang out," and no one stops them; indeed, they are wanted and welcome. The activities and uses, the design of the property, the open spaces, the non-retail activities, the expressive uses, all are designed to make the centers attractive to everyone, for all purposes, to make them a magnet for all people, not just shoppers. The hope is that once there they will spend. The certainty is that if they are not there they will not.
The term "expressive uses" is not intended necessarily to suggest free speech as that phrase is conventionally used, or some commitment of the centers to free speech simply because they have invited these uses. They are generally not the same expressive uses encouraged by Princeton University, uses that went to the core of free speech. But almost all are non-retail, non-commercial activities that most likely involve some element of speech, and some involve causes and issues. There are events to which the entire public was invited, free of charge. Each one, at some point in the event, in some way, presumably projected some message, even if mostly non-controversial.
These non-retail uses, expressive and otherwise,*fn11 underline the all-inclusiveness of defendants' invitation to the people.
Not only are there the multiple uses ordinarily found in a downtown business district, and the invitation implied from that alone, but others that may not be found in the downtown business district, all explicitly sponsored by the shopping centers, the sum total amounting to the broadest, indefinable, almost limitless invitation. Speech is included; it is certainly not the goal, but it is inevitably found there, even if in modest portions, along with its inevitable messages, many deemed by most people -- but not all -- as non-controversial because they agree with the message. These uses, combined with the vast open spaces, the benches, the park-like settings, together carry the message that this is the place to be -- this is your community, where you can rest, relax, talk, listen, be entertained and be educated. The multiplicity of uses reflects the intention to bring the entire community -- its citizens and its activities -- into the center. The uses and invitation, in effect, reconstitute the community, conveniently, under one roof.
While most centers apparently permit it, some of the centers explicitly authorize issue-oriented speech at community desks and community booths. The community booth policy of Woodbridge Center provides a good illustration:
Our shopping center is an important part of this community. We invite members of the community to shop at Woodbridge Center and to take advantage of the numerous amenities we offer. We also make our Community Booth available to community and political organization of [sic] citizens' groups for the purpose of distributing circulars, petitions and other literature pertaining to their activities and for communication with the public regarding community affairs, subject to our rules and regulations. We have provided a Community Booth to be used for this purpose.
Your presence, whether as a shopper or as a purveyor of community or political information, is welcomed; provided that you recognize and respect our right to maintain our center as clean, neat orderly, pleasant and harassment free environment for everyone.
Our rules and registration form must be submitted no less than seven days prior to the desired date. Subject to availability, activities will be calendared on a first-come, first-served basis.
[Plaintiff's Appendix, 149a (first and second emphasis added).]
The centers, moreover, have apparently not excluded the partisan political speech often found in voter registration drives, most of which were sponsored by party organizations or candidates, and especially found in the conduct of the candidates (and presumably their aides) as they walk through the mall.
The breadth of the invitation and of the permitted uses suggests that the real issue in this case is not the constitutional right to leaflet, but the scope of the owners' power to regulate it. Indeed, the constitutional dispute appears to be academic for the four defendants who granted plaintiff permission to leaflet on their premises. In effect, although they deny the existence of a constitutional right, their sole practical issue with plaintiff concerns the extent of regulation, plaintiff claiming it substantially and unnecessarily restrains the effectiveness of its leafletting, and defendants claiming it is essential to protect their market.
We need not devise new legal principles of general application to determine whether defendants' explicit prohibition -- wherever it existed, and to the extent there was one -- destroys the implicit invitation or vice versa. We consider both the prohibition and the invitation in our evaluation of this element of the standard and in our resolution of the constitutional question.
The almost limitless public use of defendants' property, its inclusion of numerous expressive uses, its total transformation of private property to the mirror image of a downtown business district and beyond that, a replica of the community itself, gives rise to an implied invitation of constitutional dimensions that cannot be obliterated by defendants' attempted denial of that invitation, an implied invitation that includes leafletting on controversial issues. The regional and community shopping centers have achieved their goal: they have become today's downtown and to some extent their own community; their invitation has brought everyone there for all purposes. Those purposes in fact -- regardless of their clear subjective profit motive -- go far beyond buying goods; they include not only expressive uses but so many different uses without any commonality other than the mix of uses that
define a community, and in terms of the centers' motivation, almost anything that will bring people to the centers. This is the new, the improved, the more attractive downtown business district -- the new community -- and no use is more closely associated with the old downtown than leafletting. Defendants have taken that old downtown away from its former home and moved all of it, except free speech, to the suburbs. In a country where free speech found its home in the downtown business district, these centers can no more avoid speech than a playground avoid children, a library its readers, or a park its strollers.
Thus, the first two elements of the standard -- the normal use of the property, and the nature and extent of the public's invitation to use it -- point strongly in the direction of a constitutional right of speech.
The third factor, the relationship between "the purpose of the expressional activity . . . to both the private and public use of the property," Schmid, supra, 84 N.J. at 563, examines the compatibility of the free speech sought to be exercised with the uses of the property. We note preliminarily that where expressive activity is permitted and therefore compatible with those uses, presumptively so is leafletting, and the burden should fall on those who claim it is not. More importantly, we find that the more than two hundred years of compatibility between free speech and the downtown business district is proof enough of its compatibility with these shopping centers. The downtown business districts at one time thrived: no one has ever contended that free speech and leafletting hurt them. The extent of their downfall has had nothing to do with free speech and leafletting. This record does not support the proposition that one dollar's worth of business will disappear because of plaintiff's leafletting even though some shoppers and non-shoppers may not like it. Furthermore, defendants' contention that leafletting on controversial issues is discordant and damaging to their purposes is inconsistent with the permission to leaflet given to plaintiff in this case by four of these centers.
These centers have full power to minimize whatever slight discordance might otherwise exist; full power to adopt rules and regulations concerning the time, place, and manner of such leafletting, regulations that will assure beyond question that the leafletting does not interfere with the shopping center's business while at the same time preserving the effectiveness of plaintiff's exercise of their constitutional right.
Thus, the third element of the standard -- the compatibility between the expressive activity and the purposes of that activity, and the public and private uses of the property -- points in the direction of the existence of the constitutional right.
We find that each of the elements of the standard in Schmid, the use, the invitation, and the suitability of free speech at the centers, supports the existence of a constitutional free speech right in the plaintiff and a corresponding obligation in the defendants. "Taken together, these . . . relevant considerations" of the "multi-faceted" standard set forth in Schmid lead to the Conclusion that these regional and community shopping centers must "be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly," here the leafletting sought by plaintiff. Schmid, supra, 84 N.J. at 563.
We decide this case not only on the basis of the three-pronged test in Schmid, but also by the general balancing of expressional rights and private property rights. Schmid, supra, 84 N.J. at 560-62. The standard and its elements are specifically designed with that balancing in mind. A more general analysis of the balance provides a further test of the correctness of our determination.
The essence of the balance is fairly described by Justice Handler in Schmid :
Private property does not "lose its private character merely because the public is generally invited to use it for designated purposes." Nevertheless, as private property becomes, on a sliding scale, committed either more or less to public use and enjoyment, there is actuated, in effect, a counterbalancing between expressional and property rights.
[Id. at 561 (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S. Ct. 2219, 2229, 33 L. Ed. 2d 131, 143 (1972)) (citations omitted).]
Or, 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." Marsh v. Alabama, 326 U.S. 501, 506, 66 S. Ct. 276, 278, 90 L. Ed. 265, 268 (1946), cited with approval in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 325, 88 S. Ct. 1601, 1612, 20 L. Ed. 2d 603, 616 (1968).
There is no doubt about the outcome of this balance. On one side, the weight of the private property owners' interest in controlling and limiting activities on their property has greatly diminished in view of the uses permitted and invited on that property. The private property owners in this case, the operators of regional and community malls, have intentionally transformed their property into a public square or market, a public gathering place, a downtown business district, a community; they have told this public in every way possible that the property is theirs, to come to, to visit, to do what they please, and hopefully to shop and spend; they have done so in many ways, but mostly through the practically unlimited permitted public uses found and encouraged on their property. The sliding scale cannot slide any farther in the direction of public use and diminished private property interests.
On the other side of the balance, the weight of plaintiff's free speech interest is the most substantial in our constitutional scheme. Those interests involve speech that is central to the purpose of our right of free speech. At these centers, free speech, such as leafletting, can be exercised without discernible interference with the owners' profits or the shoppers' and non-shoppers' enjoyment. The weight of the free speech interest is thus composed of a constant and a variable: the constant is the quality of
free speech, here free speech that is the most important to society; the variable is its potential interference with this diminished private property interest of the owner. Given the limited free speech right sought, leafletting accompanied only by that speech normally associated with and necessary for leafletting, and subject to the owners' broad power to regulate, that interference, if any, will be negligible.
The vindication of our State's constitutional free speech right in this case falls at least as clearly within the standard of Schmid as did the facts in that case. While the use of the campus of Princeton for free speech was a proportionately greater component of Princeton's total uses, and while Princeton had a strong institutional commitment to political free speech, the potential interference with Princeton's need to control activities on its campus and within its academic community was troublesome. Schmid, supra, 84 N.J. at 566-67. We acknowledged the sensitivity of the issue -- the overriding need of independent private universities to control their mission and to shape it without outside interference -- and our determination to respect that independence. Moreover, Princeton's commitment to free speech and its invitation to off-campus organizations and individuals is idiosyncratic, not an essential or inevitable attribute of private universities' role in society or their success. We have no doubt that other private universities may have no such constitutional obligation and assume that Princeton itself could so change its mission, commitment, and policies as to bring into question the continued existence of the free speech right, although we doubt very much that that will occur given the University's tradition and history.
No such sensitivity exists in this case; there is no need to carefully calibrate the risk of damaging the mission of these centers, for the risk is practically non-existent. More than that, the constitutional obligation in this case arises from what we have come to recognize as the essential nature of regional shopping centers -- their all-inclusive uses and their corresponding all-em
bracing implied invitation to the public. For regional shopping centers, the implied expressional invitation is part of their nature, solidly embedded in their inescapable mission as the intentional successors to downtown business districts and their basic profit-making purpose. We foresee no likely change in that essential nature that would affect the elements of the standard or the ultimate balance between free speech and property rights.
We are totally satisfied that on balance plaintiff's expressional rights prevail over defendants' private property interests. We are further satisfied that the interference by defendants with plaintiff's rights constitutes unreasonably restrictive or oppressive conduct. The deprivation of free speech would affect more than a private university community, it would affect a substantial portion of the state's population.
We need not deal directly with plaintiff's common law contentions. However, in deciding the case on constitutional grounds, we draw on those sources mentioned in Hunt, supra, 91 N.J. at 363-68 (Handler, J., Concurring), including our common law. It lays a foundation that would vindicate the exercise of speech and assembly rights in this setting.
In State v. Shack, 58 N.J. 297 (1971), we ruled, on common law grounds, that two employees of federally funded organizations had the right to enter private property of an operator of a migrant labor camp to aid two migrant workers who lived and worked there. The aid included an aspect of free speech, the right to give the workers information about assistance available to them under federal statutes. By bringing migrant workers to their property, the operators of these camps created a need for free speech there that could not be denied because of its private ownership. We recognized in Shack that in necessitous circumstances, private property rights must yield to societal interests and needs, that there must be an "accommodation between the right of the owner and the interests of the general public," id. at 306, that
while society will protect the owner in his permissible interests in land, yet ". . . such an owner must expect to find the absoluteness of his property rights curtailed by the organs of society. . . . The current balance between individualism and dominance of the social interest depends not only upon political and social ideologies, but also upon the physical and social facts of the time and place under Discussion."
[Id. at 305 (quoting 5 Powell on Real Property (Patrick J. Rohan, ed., 1970)).]
We also find as support for our Conclusions an enduring principle recognized in Marsh, a principle that remains pertinent for our purposes even though it has not been accepted in this context as a matter of federal constitutional doctrine. The principle of that case (and Logan) is that the constitutional right of free speech cannot be determined by title to property alone. Thus, where private ownership of property that is the functional counterpart of the downtown business district has effectively monopolized significant opportunities for free speech, the owners cannot eradicate those opportunities by prohibiting it.*fn12
Like many constitutional determinations, our decision today applies a constitutional provision written many years ago to a
society changed in ways that could not have been foreseen. One of those changes is relatively modern: the vastly increased capability to achieve mass communication, primarily, for the moment at least, to do so through television. This emergence of television as the preeminent medium for mass communication provides no justification to deny plaintiff this constitutional right. Most fundamentally, the general right of free speech through one means has never depended on a lack of any other means; radio never diminished the right of free speech at downtown business districts.
Furthermore, television is not available as a practical matter to these issue-oriented groups. In the fourth quarter of 1993 the average cost of a national thirty-second television commercial ranged from $23,000 during daytime hours to $155,000 during prime-time hours. Adweek, Marketer's Guide to Media, Fall/Winter 1993-1994, at 27 (1993). While much lower rates for smaller audiences are available, issue-oriented groups simply cannot afford an effective television campaign. The paucity of issues advertised on television proves it. The viewer will see only those issue-oriented groups with the most substantial membership and funds. There are very few.
Although no one can confidently predict the future impact of technological developments on the free speech of these groups, television at present seems in fact to do them more harm than good. As the overwhelming medium of choice, it has somewhat diminished the impact of press coverage traditionally generated by issue-oriented groups. Television's own lack of issue coverage has been widely criticized. When they are covered, the coverage almost invariably deals with majoritarian viewpoints on issues that have engaged large sectors of the public. The little-known, often unheard of, small issue-oriented groups and their views are rarely if ever mentioned. Some may not be worth hearing, but that should give little comfort in a country born of dissidents and Dissenters. For these small groups, indeed for the country itself, television falls short in serving the core value of free speech -- the belief that the unpopular views of a minority, if heard, can in time
become the majority view. We are a poorer nation when these small groups are silenced. The effect of the dominance of television has been to increase the need of these issue-oriented groups to reach the public through other means, and their only other practicable means is the leafletting they seek here. Justice Marshall knew it, and said it well:
For many persons who do not have easy access to television, radio, the major newspapers, and the other forms of mass media, the only way they can express themselves to a broad range of citizens on issues of general public concern is to picket, or to handbill, or to utilize other free or relatively inexpensive means of communication. The only hope that these people have to be able to communicate effectively is to be permitted to speak in those areas in which most of their fellow citizens can be found. One such area is the business district of a city or town or its functional equivalent. And this is why respondents have a tremendous need to express themselves within Lloyd's center [a regional shopping center].
[Lloyd Corp. v. Tanner, 407 U.S. 551, 580-81, 92 S. Ct. 2219, 2234-35, 33 L. Ed. 2d 131, 149-50 (1972) (Marshall, J., Dissenting).]
If constitutional provisions of this magnitude should be interpreted in light of a changed society, and we believe they should, the most important change is the emergence of these centers as the competitors of the downtown business district and to a great extent as the successors to the downtown business district. The significance of the historical path of free speech is unmistakable and compelling: the parks, the squares, and the streets, traditionally the home of free speech, were succeeded by the downtown business districts, often including those areas, the downtown business districts where that free speech followed. Those districts have now been substantially displaced by these centers. If our State constitutional right of free speech has any substance, it must continue to follow that historic path. It cannot stop at the downtown business district that has become less and less effective as a public forum. It cannot be silenced "as the traditional realm of grassroots political activity withers away." Curtis J. Berger, Pruneyard Revisited: Political Activity on Private Lands, 66 N.Y.U. L. Rev. 633, 661 (1991).
Certainty is impossible in determining the undiscoverable intent of this century-old provision in the light of changing times. In the
effort, however, we must not forget that our constitutional free speech provision is different from practically all others in the nation. Schmid proclaimed this difference and it is fundamental. In New Jersey, we have an affirmative right of free speech, and neither government nor private entities can unreasonably restrict it. It is the extent of the restriction, and the circumstances of the restriction that are critical, not the identity of the party restricting free speech. Were the government ever to attempt to prohibit free speech in the downtown business district, without doubt our Constitution would prohibit it, and in New Jersey when private entities do the same thing at these centers, our Constitution prohibits that too. We cannot determine precisely the extent of damage to free speech that will call forth our constitutional provision to prevent it, but precision is not required in this case: the damage is massive.
A change of a political nature should also be considered. The recall of elected officials and the adoption or repeal of laws and constitutional provisions through initiative and referendum have become fairly common in this country, the former -- recall -- now part of New Jersey's Constitution, the latter -- initiative and referendum -- a realistic possibility.*fn13 Both depend directly on petitioning and indirectly on the persuasiveness, through free speech, of the candidate, the cause, or the petitioner. In the case of recall, over one million petitioners are required if the official is the Governor, or if a county official, the average is over 48,000 signatures, and for a district, the average is 25,000.*fn14 As for initiative and referendum, one proposal would require over 300,000 signatures for a constitutional initiative and over 200,000 for a
statutory initiative.*fn15 Obviously, these centers are the most likely place for realizing the goals of such laws, and perhaps the only practical place. The required number of petition signers cannot be found elsewhere. These are free speech rights of the highest order, the recall provision already approved by the people. It is unthinkable that the free speech provision of our State Constitution will not protect them at these centers.
We look back and we look ahead in an effort to determine what a constitutional provision means. If free speech is to mean anything in the future, it must be exercised at these centers. Our constitutional right encompasses more than leafletting and associated speech on sidewalks located in empty downtown business districts. It means communicating with the people in the new commercial and social centers; if the people have left for the shopping centers, our constitutional right includes the right to go there too, to follow them, and to talk to them.
We do not believe that those who adopted a constitutional provision granting a right of free speech wanted it to diminish in importance as society changed, to be dependent on the unrelated accidents of economic transformation, or to be silenced because of a new way of doing business.
Two of the defendants contend that granting plaintiff the constitutional right of free speech deprives them of their property without due process of law, takes their property without just compensation, and infringes on their right of free speech. U.S. Const. amends. I, V; N.J. Const. art. I, PP 6, 20. Each of those contentions, insofar as the Federal Constitution is concerned, was rejected in PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-88, 100 S. Ct. 2035, 2041-44, 64 L. Ed. 2d 741, 752-56 (1980). Their assertion here includes the same contentions under New Jersey's Constitution, which we now reject for reasons similar to those expressed by the United States Supreme Court. Other jurisdictions that have addressed this issue have similarly relied on the federal PruneYard decision. Lloyd Corp. v. Whiffen, 849 P.2d 446, 449-50 (Or. 1992) (Whiffen II); Bock v. Westminster Mall Co., 819 P.2d 55, 62 (Colo. 1991). Insofar as invasion of private property rights is concerned, our decision in State v. Shack, 58 N.J. 297, 303-08 (1971), is similarly dispositive. We would add to the United States Supreme Court's response to the private property owners' free speech concerns (concerns underlined in Justice Powell's concurrence in PruneYard, supra, 447 U.S. at 96-101, 100 S. Ct. at 2048-51, 64 L. Ed. 2d at 761-65) that private property owners who have so transformed the life of society for their profit (and in the process, so diminished its free speech) must be held to have relinquished a part of their right of free speech. They have relinquished that part which they would now use to defeat the real and substantial need of society for free speech at their centers; they should not be permitted to claim a theoretically-important right of silence from the multitudes they have invited. No matter how it is analyzed, the right claimed by the property owners is minimal compared to that which their claim would significantly diminish.
We do not interfere lightly with private property rights, but when they are exercised, as in this case, in a way that drastically curtails the right of freedom of speech in order to avoid a relatively minimal interference with private property, the latter must yield to the former. That does not mean that one is fundamentally more important than the other, although we believe it is, but rather that here the correct resolution of the conflict between those rights is self-evident. What is involved in this case is the right of every person and of every group to make their views known, however popular or unpopular they may be, and the right of the public to hear them and learn from them. What is involved here is the fundamental speech right of a free society. The flow of free speech in today's society is too important to be
cut off simply to enhance the shopping ambience in our state's ...