A Reporter Strategy for Challenging Access Barriers at Shopping Malls

By Jim DeBrosse

ABSTRACT — In recent years, the growing shift toward private control of the public sphere – from downtowns to malls, from neighborhoods to gated communities, from public records to private contracts — has occupied media and legal scholars who are rightly worried about the eroding foundations of the country’s democratic institutions.  This paper will focus more narrowly on how the shift to privately-owned gathering spaces in malls and shopping centers has impacted working reporters. It also seeks to instruct journalists in ways that they can push back against the control of mall owners and gain access to a concentrated diversity of citizens again. Finally, it also suggests how media lawyers might frame a legal challenge to the exclusion of reporters from malls by citing civil rights precedents and the growing use of public funds to develop ever-larger private malls.

Street interviews have long been a convenient, and often the only, means for reporters to gather a quick public response to breaking news or to personalize larger issues of public concern. Traditionally, reporters have found their best access to a regional cross-section of the public on downtown streets where shoppers, diners, office workers, professionals and those simply seeking diversion amidst the communal hubbub could be approached for their views. But in recent decades and trending well into the future in the view of retail and urban development experts, large shopping malls have begun replacing downtowns as regional centers not only for shopping and browsing but for entertainment and dining, health and fitness activities, cultural exhibits, outdoor performances and even community events.  Today, regional outdoor malls like The Greene — known in the shopping center industry as “lifestyle centers” — are the fastest growing category of mall in America  and pose the biggest threat of all to traditional public spaces. Built on street grids, often in conjunction with mixed-use development such as office space and apartments, lifestyle centers are far more ambitious than traditional shopping malls in both the scope of amenities they offer and the sense of place and character they use to lure their patrons.  As the latest entry to the “malling” of America, lifestyle centers seek to recreate the features of a traditional village square, marketplace or Main Street – “only in a safer, more homogenized and more consumable form,” as Mulligan argues.  Up to a half-million square feet in size, the centers include commons areas and performance venues as well as more decorative touches like vending carts, parking meters (often for raising money for charities), gazebos and fountains. Visitors can imagine themselves in the heart of a town square with no inkling that they are standing on private property, until a mall security guard on a Segway happens to cross their path.

Lifestyle centers are still only a small fraction of the total number of shopping centers of all sizes in America (405 of 104,940 centers, or 0.3 percent, as of 2009), but their numbers grew nearly eight times faster than the industry total between 2006 and 2009 – 38 percent growth compared to just 5 percent for all shopping centers.  More importantly, as the new “downtowns” of many regions, they can attract far more casual visitors than even the largest enclosed malls, especially during pleasant weather. As nearly any reporter outside the nation’s largest cities can attest, the rapid growth of large malls is dealing the final death blow to many downtowns as crossroads of a diverse and easily accessible public. In turn, many downtowns have become the domain of mostly the poor and the homeless who, while deserving of a voice as well, are hardly representative of the larger public.

As the New Jersey Supreme Court observed in N.J. Coalition Against War in the Middle East v. J.M.B. Realty Corp. (1994), “malls are where people can be found today.”  Despite their efforts to recreate a traditional public space in most every detail – what Mulligan calls a “simulated” downtown — private owners of lifestyle centers and malls in general have been opposed to extending to the public any of the free speech rights of a traditional downtown. Instead, mall owners regulate the behavior within their premises by exerting the most fundamental property right – the right to exclude.  Hence, reporters, and the public, find themselves at the mercy of mall owners if they wish to engage in free speech activities, regardless of whether or not those activities would interfere with the normal business operations of the mall.

A CHALLENGE SINCE MARSH V. ALABAMA

 The legal challenges of free speech versus property rights reach back to 1946 with Marsh v. Alabama, when the U.S. Supreme Court skirted close to endorsing the idea that private ownership of public gathering spaces did not negate free speech.  In Marsh, a woman passing out religious literature refused to leave a sidewalk in Chickasaw, Alabama, a suburb of Mobile that looked and functioned like any other town, except that it was privately owned by the Gulf Shipbuilding Corp. She claimed that the imposition of criminal punishment for her action violated the First and Fourteenth Amendments. The nation’s highest court agreed, finding that whether a company or a city owned the town “the public had an identical interest in the functioning of the community.”  More than twenty years later, the court held to the same position when applied to a private shopping center, equating it with a business district, in Amalgamated Food Employees Local 590 v. Logan Valley Plaza.  The ruling permitted a union to picket in a shopping center near Altoona, Pennsylvania against a merchant targeted in a labor dispute.

But after President Richard Nixon replaced key liberals on the court, it began backpedaling in its expansive view of speech rights over property rights.  In Lloyd Corp. v. Tanner (1972), the court allowed a large enclosed shopping center in Portland, Oregon to expel anti-Vietnam War activists distributing leaflets, arguing that there was no relationship between their literature and the businesses operating at the shopping center and that the leafleters had many other venues for reaching the public.  The five young protestors, who were distributing invitations to a “resistance” meeting against the draft and the war, were orderly and peaceful, but they left the mall after being threatened with arrest. The activists had argued successfully in a U.S. District Court that their free speech rights had been violated because the mall had extended an open invitation to the public. The Supreme Court disagreed, arguing that the mall’s primary function is commercial and that “there is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.”

Four years later, the high court reversed Logan Valley in another shopping center case, Hudgens v. NLRB, when warehouse employees striking against a shoe store at an enclosed mall in suburban Atlanta were banned from passing out leaflets. The Hudgens decision left no doubt that distribution of any materials at a mall could be outlawed, even if it involved a merchant there.

 California was one of the first states to challenge the highest court’s retrenching against First Amendment rights, having established an early precedent for speech rights in private malls owing to “the public character of the shopping center.”  In 1979, the California Supreme Court turned to the wording of its own state constitution to rule in favor of high school students who had set up a table inside a large regional mall known as the PruneYard and began passing out leaflets and seeking signatures on a petition opposing a U.N. Resolution condemning “Zionism.” The students had not caused a disturbance or generated customer complaints, but were asked by mall security guards to leave the premises anyway. In Robins v. PruneYard, the California high court upheld the First Amendment speech rights in private shopping malls, arguing that the positive wording of its own constitution (“every person may freely speak, write and publish his or her sentiments on all subjects,” Article 1, § 2a) was more expansive than the negative check against government suppression in the First Amendment (“Congress shall make no law” abridging freedom of speech).

In a surprising turn, the U.S. Supreme Court declined in 1980 to reverse the California decision and instead created a loophole for states, affirming that states whose constitutions afforded more speech rights than the First Amendment of the U.S. Constitution were free to do so.  But while thirty-four states have speech provisions nearly identical to California’s, few have followed its lead in the PruneYard decision.  Seventeen state courts  — the overwhelming majority of the twenty-two that have considered the question so far — have agreed with the U.S. Supreme Court that property rights trump speech rights when there is no “state action” involved – that is, when the government has no stake in the property.

 Five other states, including California, have set out on their own paths. Massachusetts and Washington allow limited speech rights in malls related to signature gathering for election petitions, but not for expressive activities alone.  Colorado recognizes malls as public forums if they receive some form of public subsidy or assistance, but permits owners to restrict speech activities to certain parts of the mall.

 Like California, New Jersey has affirmed the full range of speech rights in malls regardless of any public assistance they might receive, but allows mall owners to restrict the time, manner and place of expressive activities.  Patrons who want to participate in public discourse may do so in designated areas, as long as they are not so loud or strident that they disturb others who simply want to shop. By extension, roving reporters can be confined to certain common areas or sidewalks of the mall where they would not interfere with the mall’s normal business activities.

Since the U.S. Supreme Court decision in PruneYard in 1981, no state supreme or appellate court has ruled directly on reporter’s rights to conduct interviews in shopping malls. But in Desnick v. American Broadcasting Co. (1995), a case involving ABC reporters who posed as patients to expose an eye clinic doing fraudulent surgeries, the Seventh Circuit Court of Appeals made clear that “there is no journalists’ privilege to trespass.”  The U.S. Supreme Court has at least given a nod to a First Amendment right to gather news, noting in another 1980 seminal case, Richmond Newspapers v. Virginia, that “without some protection for seeking out the news, freedom of the press could be eviscerated.”  But in later opinions, that right has not been expanded much beyond its original application of access to courtrooms, according to The First Amendment Handbook of The Reporters Committee for Freedom of the Press.

A DISSERVICE TO THE PUBLIC

But blocking journalists’ access to public spaces offering the highest and most diverse concentrations of citizens is a disservice not only to the media but to the larger interests of society. As Altschull points out, the doctrine of social responsibility first formalized by The Hutchins Commission in 1947 calls on journalists to perform five basic services for a democratic society: “(1) an accurate, comprehensive account of the day’s news; (2) a forum for exchange of comment; (3) a means of projecting group opinions and attitudes to one another; (4) a method of presenting and clarifying the goals and values of society, and (5) a way of reaching every member of society.”  At least three pillars of that doctrine – 2, 3 and 5 – are directly threatened by the increasing privatization of public space and the legal system’s reluctance to give proper weight to those societal interests against the rights of private property owners.

Although aggregate data is lacking, many of the same owners and developers who have argued that allowing free speech at malls deprives them of their private property rights have, at the same time, sought and gained taxpayer support for their projects in the form of development grants and tax credits and abatements for construction of access roads and even interior streets and sidewalks. Steiner and Associates, the Columbus-based firm that developed The Greene and five other lifestyle centers in Ohio, Wisconsin, Missouri and New Jersey, has used public dollars in the majority of its retail projects, the company’s president told the Dayton Daily News in 2007.  And yet executives at The Greene insist that, as a private enterprise, they have the right to control free expression on their premises and to exclude reporters who want to research “controversial stories” or conduct interviews on topics that might disrupt “the comfort and security of shoppers.”  Christopher Magan, a former reporter for The Dayton Daily News, said he simply quit asking to do interviews at The Greene “because they were such a pain . . . to deal with.”

Private control of tax-supported public spaces can reach absurd lengths, as it did in downtown Silver Spring, Maryland in 2007. Silver Spring resident Chip Py was snapping photos of what looked and felt like an old-fashioned downtown street in his hometown when private security guards ordered him to stop. Downtown Silver Spring had been redeveloped into an open-air shopping mall by The Peterson Cos. – with the help of $100 million in taxpayer support.  After Py and 138 supporters vowed to picket the mall along its main street on The Fourth of July, Peterson executives modified their ban on street photography, but they never conceded in any meaningful way that the streets they lease from the city of Silver Spring have any First Amendment protection.  Washington attorney Jason Levine forewarned in an interview with The Washington Post at the time: “If all public space is privately owned, where will the marketplace of ideas exist?”  While it is true that the Internet and social media have created new forums for communication, digital interaction is not likely to replace face-to-face discourse, where those voicing an opinion can be seen and heard as fellow human beings, not as faceless abstractions. As Friedman notes, hundreds or even thousands of courts cases over the last decade concerning the rights of speakers in public spaces points to the continuing importance of “the right to beg, banner, march, protest, or distribute leaflets on public streets, sidewalks and parks.”

THE CASE FOR REPORTER ACCESS

The legal notion that property rights are paramount in relation to all other individual rights under the U.S. Constitution has been over-ridden in at least one area – civil rights. Title II of the Civil Rights Act of 1964 requires the owners of public accommodations to serve patrons without regard to race.  Thus, to achieve a greater goal – fair treatment of all people where the public is invited — the Act curtails the owner’s right to select whom they will admit and for what purposes.  This law remains unchallenged by the nation’s highest court, and rightly so. Mall owners might have tried to argue that admitting all races to their private property could drive away some patrons who will spend money there – a violation of their Fifth Amendment right to control and profit from their private holdings. Indeed, race often has been a factor in the disappearance of shoppers from downtown shopping districts, where some suburbanites say they don’t feel safe among the poor and minorities. But Congress and the courts, as has perhaps American society at large, have determined that equal rights of access for all citizens outweighs the simple commercial interests of those who own barber shops, restaurants, private pools, department stores and even malls. Perhaps even more burdensome to property owners, Congress and the courts have decided that all public spaces, including those privately owned, must accommodate individuals with disabilities — at the owner’s expense and to the potential inconvenience of their non-disabled patrons — under the Americans with Disabilities Act.

Is it too great a leap, then, to argue that reporters should have equal access to all segments of society in gathering information to promote a vigorous and diverse public discourse?  As Depoorter points out, “a vast body of law . . . obliges owners to grant access to their property” in the public interest, including search and seizure provisions, eminent domain, and health and safety regulations.  More specifically, Depoorter notes, case law may offer a loophole by extension for journalists who trespass on private property. In State v. Shack (1971), the New Jersey Supreme Court held that an attorney and a health care worker could come to the aid of an ailing migrant farm worker living on the property owner’s farm.  The ruling was based on the premise that the government has a right to protect the health and welfare of its citizens even if it means trespassing on private property against the will of the owner. Depoorter argues that journalists could make the same case – that the social benefits from exposing harm and corruption and adding to the free marketplace of ideas outweighs the harm done to property owners by trespassing. The courts need a balancing test, similar to the Fair Use exception in copyright law, that would protect both the broader interests of society and those of the property owner, he writes.

The U.S. Supreme Court affirmed in Perry Education Ass’n v. Perry Local Educators Ass’n (1983) that streets and parks “by long tradition. . . have been devoted to assembly and debate.”  Here, the court ruled, the government’s rights “to limit expressive activity are sharply circumscribed.”  But what happens if that “long tradition” of gathering spaces is no longer publicly owned while those that are publicly owned no longer gather people? As Levine argues, “in order for freedom of speech to also reflect a freedom to be heard, it must be accompanied both by a place to speak and an audience to reach.”  In a society that is at risk of losing all of its face-to-face public discourse, mall owners have unwittingly created the new public spaces by recreating the streets and commons of the traditional downtown or town square, often with the help of taxpayers’ money. Levine writes: “Consequently, the burden these property owners must bear is that free expression extends to all public space wherever it may be found.”

As long as reporters do not disrupt commerce within the confines of the mall, it is hard to see how owners lose money or sacrifice their property rights in any way, especially if they are given the right to control the time, place and manner of reporter interviews. Nearly all courts that have found a right of access to shopping malls have also said that owners may set reasonable restrictions on public expression. These rules generally must meet a three-part test – they must be content neutral, narrowly tailored to serve a significant state interest and leave open ample channels of communication.  And as BeVier argues, if all shopping malls were required to comply equally under the law in presenting interview opportunities, whatever loss they may suffer would be spread among many property owners.  But even if mall owners do incur additional costs, is it unreasonable to expect mall owners to accept those costs as part of doing business as a simulated public space, especially when that space has received tax support for its development and/or operation?

In its 1991 ruling in Bock v. Westminster Mall Co., the Colorado Supreme Court found that a town’s financial support of a shopping mall, and the range of non-shopping activities permitted there, essentially transformed the center into a latter-day public forum.  The court ruled that the state constitution’s free speech clause therefore prevented the mall owners from excluding citizens engaged in non-violent political speech. On the other hand, the Minnesota Supreme Court held in Wicklund (1999) that neither the state nor the federal constitution allowed picketers to protest in a mall that had been created partly with public money because no “state action” was involved in its operation. The incentive, then, is for mall developers to get all their public money upfront in order to avoid the burden of providing a public forum. These two conflicting state rulings demand clarification from the U.S. Supreme Court.

What the courts have made abundantly clear is that public right of ways, including sidewalks and streets created with public funds, are public forums where free speech activities, and the right to gather news, are unrestricted. Publicly-owned streets have always been – and are constitutionally required to be – forums for all types of expressive activity.  Perhaps for this reason, many mall owners would prefer that the media and the public not know that their private establishments are often built on roads and sidewalks constructed with public funds. In fact, government may retain the public right of way for those sidewalks and streets as a condition for obtaining public funds. The Greene is one such example: Greene County maintains a public right-of-way on all the mall’s streets and up to half of its sidewalk space fronting its shops.  Yet the owners of The Greene insist they have a right to determine the content of reporter interviews lest they be “too controversial” for its customers or threaten their “comfort and security.”

As both public servants and industry representatives, reporters ought to be pushing the envelope of First Amendments rights so vital to their existence as well as to the nation’s public discourse. For reasons of both courtesy and practicality, a reporter should, first of all, seek permission from mall owners to conduct interviews there. If denied, they should ask what restrictions or conditions might make their access less disruptive of mall operations and more agreeable to the owners. If the owners refuse to set reasonable and content-neutral conditions, then reporters should do some digging to see what taxpayer support has gone into the development, maintenance and operation of the mall:

• Check the local auditor’s GIS maps for public right of ways on the mall property.

• Consult the local auditor’s office or its website — as well as city tax department and local school district officials — for tax abatements on the property.

• Ask local officials if there has been any tax increment financing of the mall. By declaring the mall a Tax Increment Financing District, county taxes on the property are set aside specifically for building and maintaining the mall’s infrastructure – streets, sidewalks, sewer and water lines – rather than going into the county’s general fund for wider use.

• Call state tax department and economic development officials to see if there have been corporate income tax credits issued to the mall for hiring employees.

• Check with the local Port Authority to see if mall owners were awarded special bond issues or tax breaks of any kind for their development.

• Consult city, county and state development officials to see if government development grants were awarded for the mall project.

Armed with this new information, reporters and their editors and legal representatives should remind mall owners that public financial support for their developments entails at least some obligation to serve the public interest. If mall owners continue to insist on controlling the content of reporter interviews or blocking their access altogether, then reporters should write stories bringing the mall’s restrictions to the attention of readers: their tax support for the mall assures that they have a stake in the topic. Newspaper editorials could help garner public support for reporter access and, at the same time, tackle the issue of free speech rights for all citizens at privately owned malls. In the five states that provide broader free speech protections than those afforded by the U.S. Constitution, reporters should be prepared to cite case law in their favor with the help of their newspaper attorney.

Finally, if reporters are denied access to a mall when they have reason to believe that the law is on their side, they should follow the advice in The First Amendment Handbook of The Reporters Committee for Freedom of the Press.

• Find out who has denied you access and why. Only the owners of the property or their legal representatives have the right to expel you.

• If you are ordered to leave by the owner, do so and contact your editor or news organization’s lawyer. Disobeying an order to keep out may result in your arrest, a fine or a lawsuit by the owner.

• Establish a “plan of attack” for dealing with access problems before they develop, providing names of legal advisers to be called and police officials and other contacts who may be able to facilitate access to the area.

• Write about free speech restrictions at the mall, and continue to write about them as long as they persist.

Like the First Amendment itself, reporters should be flexible enough to adapt to social change. If they don’t challenge the limits set by private owners on access to public spaces, the continuing commercial black out of public forums will force reporters off the streets with no quick means of gauging the public sentiment. To take back the streets, reporters and their legal representatives must make clear to mall owners that, while they do not intend to disrupt a mall’s normal operations, they have a right to gather opinions where people are, not where people used to be. That’s not only their job as reporters, but their social duty as promulgators of meaningful public discussion.