Shopping centers have grown from virtual nonexistence in the middle of the twentieth century to a dominant feature on the American landscape today. Along with their growth as commercial centers, modern shopping centers have become important places to engage in expressive activity—political speech, protests, and so forth. Not all speakers are welcome; mall owners have sought to exclude those activities they believe improperly intrude on private property.
Several Supreme Court decisions from 1968 to 1980 took a roundabout path to holding that no First Amendment expressive right is guaranteed in shopping centers by the U.S. Constitution, but the states are free to decide whether their constitutions extend greater rights to the individual. In 1968, the Court held that the First Amendment protected the right to free speech in shopping malls. Four years later, that position started to erode; the Court reconsidered, ruling that the invitation extended by shopping center owners to the public was limited to business-related matters. The original prospeech position fell entirely in 1976; the Court held unequivocally that the Constitution does not protect speech activity in shopping malls.
There is a twist—in 1980, the Court held that States might provide greater protection of speech rights than the federal constitution. The Court did not back down from its previous opinions; instead, its central premise was that the limitations on the U.S. Constitution do not also limit a state’s authority to offer greater protection of individual liberties. The states have been divided over this question; there is no consensus.
MARK C. ALEXANDER
Cases and Statutes Cited