GUEST OPINION: Do you have free speech in a shopping mall?

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First Amendment Center
Most Americans know that they can speak their mind in the public square, thanks to the First Amendment.

But what about shopping malls, arguably the modern equivalent of a village green?

Well, outside of California and New Jersey, the First Amendment’s strong protection for free expression — particularly speech involving public issues — likely won’t apply in your local mall if it’s privately owned.

The latest conflict about such speech involves a Tennessee man who on Dec. 15 was ordered several times by Stones River Mall security guards in Murfreesboro, to remove or turn inside-out a T-shirt bearing the phrase, “Has your gun killed a kindergartner (sic) today?”

Stanley Myszka — who had the shirt printed in a mall shop — was charged with criminal trespass for not leaving the mall when asked to do so.

Generally, the First Amendment applies to government, not to private citizens or entities.

In California and New Jersey, however, courts have found that their state constitutions provide greater protection for speech than does the federal Constitution, and that shopping malls are the free-expression equivalents of parks and public streets.

How did we get to this situation?

The legal path begins nearly 70 years ago, as the U.S. Supreme Court began to set out ever-more-specific decisions protecting citizens’ right to free speech in public areas while preserving property owners’ rights in private spaces.

In Marsh v. Alabama (1946), a case involving distribution of Jehovah’s Witnesses’ religious leaflets on a sidewalk in an Alabama town, the Supreme Court held that the central business district of a so-called “company town” was the same as a public street for First Amendment purposes. The justices said that when an owner decides to opens up private property for use by the public, the public’s rights apply in those spaces.

In 1968, the Court in Amalgamated Food Employees Union v. Logan Valley Plaza extended the Marsh ruling to include a privately owned mall because it had taken on all of the “essential characteristics” of a municipally owned space. That’s an important distinction.

But in 1972, the Court said in Lloyd Corp. v. Tanner that unlike in Logan Valley, there were alternative, traditionally public spaces — such as sidewalks adjacent to the mall, or public parks — where anti-war protesters could distribute handbills.

And in 1978, in Hudgens v. NLRB, the Supreme Court effectively discarded its earlier rulings and said that unless property owners intended to make malls the equivalent of a public space, the First Amendment did not guarantee free speech rights in private shopping centers.

A few years later, the Court recognized that state constitutions may provide more protection than the U.S. Constitution for mall speech. In  1980, in Pruneyard Shopping Center v. Robins, the Court said the California Constitution protected the right of high school students  in that state to set up a table in a mall to seek public support for a U.N. resolution concerning Zionism.

That string of decisions means a Tennessee court likely won’t reach what otherwise might be a First Amendment issue, raised in a newspaper interview by Myszka after his arrest: that the security officers in the Murfreesboro mall told him to leave because they didn’t like his anti-gun slogan.

In this particular constitutional collision, free speech depends first on where you’re standing.
Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, televison, radio and online.