Keeping Politics from Your Tenants' Front Door

Q Several of the tenants in my shopping center have been displaying political signs supporting certain candidates in their windows. Other tenants are upset about this and have asked me to remove the signs, and prevent candidates from campaigning in the center's common areas. Is it legal for me to prohibit these signs and activities? Can I negotiate a clause in future and renewed leases banning this type of electioneering?

A The issue of whether shopping centers are just for shopping has been controversial for many years. In the eyes of a number of political activists across the country, the answer is no. As this year's gubernatorial and congressional election races come to a close, you shouldn't be surprised as a mall owner if you are visited by a local candidate or her campaign manager asking for permission to hand out leaflets. Unfortunately, courts have not been consistent when guiding mall owners about whether they are required to grant permission for electioneering on their properties.

Back in 1976, the U.S. Supreme Court had ruled under the First Amendment to the U.S. Constitution that members of the public had no right to come into a shopping center and use it as a platform to advocate some cause to the assembled shoppers. This ruling gave shopping center owners the okay to restrict their malls to shopping and ban political activism.

Then in 1980, in Prune Yard Shopping Center v. Robins, the Supreme Court ruled that the free speech guarantee and the right to petition found in a state constitution may entitle the public to use a shopping center to advocate a particular cause if the state constitutional guarantee gives broader protection to citizens than the First Amendment.

After Prune Yard, it was up to individual state courts to determine whether their state constitution conferred a broad enough free-speech right on the public to afford access to an owner's private property.

For example, in 1983, a citizen went to the largest shopping center at the time in Massachusetts to get signatures on a petition that would enable him to appear as a candidate on an election ballot. The shopping center management prevented the aspiring candidate from soliciting signatures at the center. He took the shopping center all the way to the highest state court.

In a split decision, the Massachusetts Supreme Court ruled that a person soliciting signatures to get on the ballot should be permitted to enter the state's largest shopping mall for that purpose. The court was clearly swayed by the petitioner's need for personal contact with voters: The other avenues typically available to express himself—the press, door-to-door distributions, and mailings—were unsatisfactory to protect a broad state constitutional right to free elections. This ruling, however, did not extend to a person seeking to exercise other constitutional rights, such as the state's free-speech guarantee; that issue would have to be decided some other day, said the court [Batchelder v. Allied Stores International, Inc.].

There is no case directly on point for your situation, where tenants, not political activists, want to display political posters in their windows despite objection from other tenants. However, a 2007 electioneering case, Vernon Van et al. v. Target Corporation et al., held that tenants of a private shopping mall were entitled to control the areas immediately outside their stores, including windows, for selling merchandise.

A group of individuals who gathered voter signatures for initiatives, referenda, and recalls and registered voters for elections sued Target and two other businesses, alleging that they had unlawfully prevented the group from gathering signatures in front of their stores, which were located in private commercial retail complexes.

The trial court granted a judgment in favor of the businesses without a trial, ruling that the entrance area of the stores did not function as a “public forum” where campaigners would be entitled to engage in expressive activities. The California Court of Appeals upheld that decision.

The appeals court observed that the California Supreme Court had held in past cases that the state constitution protects speech and petitioning, reasonably exercised, in shopping centers—even when the centers are privately owned. That holding, however, does not apply to the area immediately surrounding the entrance of an individual retail store that does not itself possess the characteristics of a public forum, even when that store is part of a larger shopping center.

But does that mean that your tenants can use that control for political purposes—such as displaying signs—in addition to sales? Your right to ban and remove the retailers’ signs is state-specific, and what courts have decided in your area will dictate the types of lease provisions banning political items you can negotiate.

Check with your attorney about whether the determination in Target can be applied to your tenants as well as campaigners. If it can't be, and they don't have control over their windows and the areas directly outside their space, you can think about negotiating a clause in future leases prohibiting tenants’ political displays.