Free Speech Protection on "Private" property
VOLOKH at law.ucla.edu
Fri Jun 9 11:00:05 PDT 2006
Here's an excerpt from the Nongovernmental Speech Restrictions
chapter of my First Amendment casebook, though it's only responsive to
item 1 below, and focuses on the few courts that have accepted a
A few state courts have interpreted their state constitutions to limit
the power of property owners to exclude speakers. The decisions are
worth briefly summarizing, so we can consider which of the approaches
(if any) makes sense.
1. Under California law, large multi-store shopping malls must
allow leafletters, signature gatherers, and other speakers (subject to
reason-able content-neutral time, place, and manner restrictions). See
Golden Gateway Center v. Golden Gateway Tenants Ass'n, 29 P.3d 797 (Cal.
2001); PruneYard Shopping Center v. Robins, 592 P.2d 341 (Cal.1979). The
theory is that the property owner has voluntarily opened this property
to the public, for a wide range of purposes (including eating, seeing
movies, socializing, and the like), and that it should also there-fore
be required to allow the public to speak there. Stand-alone stores,
office buildings, and apartment buildings remain generally free to
ex-clude private speakers, since their owners haven't voluntarily opened
their property to the public for a wide range of purposes.
2. Pennsylvania seems to apply such a rule, but only if the
property owner has deliberately opened the property for public debate,
not just for various business and social uses. Malls generally don't
qualify, but private universities may. See Western Pa. Socialist Workers
1982 Campaign v. Connecticut General Life Ins. Co., 515 A.2d 1331
(Pa.1986), discussing Commonwealth v. Tate, 432 A.2d 1382 (Pa.1981).
3. New Jersey has a California-like rule, but also covers
universities. See Green Party v. Hartz Mountain Industries, Inc., 752
A.2d 315 (N.J. 2000); New Jersey Coalition Against War in the Middle
East v. J.M.B., 650 A.2d 757 (N.J.1994); State v. Schmid, 423 A.2d 615
4. The Colorado rule apparently requires private mall owners to
allow speakers only if the private mall is somehow specially intertwined
with the government, for instance if the government has substantially
sub-sidized the mall (which is irrelevant under First Amendment law, see
Rendell-Baker v. Kohn, 457 U.S. 830 (1982)) or if the government uses
space in the mall for traditional government functions, such as a police
substation. See Bock v. Westminster Mall Co., 819 P.2d 55 (Colo.1991).
5. Under Massachusetts law, large shopping malls must let people
gather signatures to qualify a candidate or an initiative measure for
the ballot. See Batchelder v. Allied Stores Int'l, Inc., 445 N.E.2d 590
(Mass.1983). This decision, though, was based on the election provisions
of the state constitution, not on the free speech provision.
Massachusetts courts haven't decided whether other kinds of speech are
protected under the state free speech clause.
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Gene Summerlin
> Sent: Friday, June 09, 2006 10:54 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: Free Speech Protection on "Private" property
> Can anyone recommend good resources on the following two topics:
> 1. A compilation of post Pruneyard cases addressing free speech
> rights in shopping centers or other similar types of "private
> 2. A resource addressing free speech rights or forum analysis
> involving governmental offices located in privately owned
> facilities leased to the governmental entity (e.g., a
> post-office or department of motor vehicles office located in
> a strip mall or in a standalone building leased by a
> governmental agency).
> Thanks for any assistance or direction anyone can provide.
> Gene Summerlin
> Ogborn, Summerlin & Ogborn, P.C.
> 610 J Street, Suite 200
> Lincoln, NE 68508
> (402) 434-8040
> (402) 434-8044 (facsimile)
> (402) 730-5344 (mobile)
> gene at osolaw.com
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