Set "Reasonable" Time, Place, Manner Rules for Free Speech Activities at Center

Balance your need to maintain order with the rights of political groups.

 

 

This November’s presidential election may be the most volatile in recent memory. In the months ahead, political groups and protestors may demand access to the common areas of your shopping center for demonstrations, speeches, petitioning, and other public activities (which, for simplicity’s sake, we’ll refer to collectively as “speech activities”).

So, you better be prepared. Of course, your primary consideration will be to protect your business, tenants, and shoppers. Speech activities can cause significant disruptions; there’s also the risk of such activities becoming disorderly and even violent.

But there are also legal ramifications to consider—namely, the free speech rights of the groups that want to engage in these activities. Barring speech activities at your shopping center may lead to First Amendment disputes and costly litigation. It may also hurt your shopping center’s reputation and standing in the community.

The good news is that there’s a middle approach, one that balances your legitimate need to keep order on the property with the rights of political groups and protestors to exercise their rights of free speech and expression on privately owned shopping centers: Allow public access to your property for speech activities but establish reasonable ground rules regarding not the content of the ideas or speech expressed, but the time, place, and manner in which they’re carried out. Here’s how to implement this strategy, along with a Model Policy that you can adapt with the help of your attorney.  

Shopping Centers & First Amendment Free Speech Rights

The first thing we need to consider is the legal context. First Amendment free speech rights at privately owned shopping centers is a highly complex topic. Here are the basic principles landlords need to understand to deal with free speech activities at their center.

The First Amendment of the U.S. Constitution says that “Congress shall make no law. . . abridging the freedom of speech”; it doesn’t mention anything about private property. However, the shopping center in America has become a quasi-public forum where members of the public congregate to communicate and express ideas and views on public issues that have nothing to do with the shopping center’s business. So, it’s not surprising that the question of whether the First Amendment extends to privately owned retail property has been the subject of frequent litigation in federal courts.

It began in 1946, when the U.S. Supreme Court ruled that free speech was protected on the streets in the business section of a company-owned town [Marsh v. Alabama, 326 U.S. 501]. However, subsequent cases have declined to take the next step by extending Marsh to private shopping centers. Result: The current consensus is that political groups and protestors don’t have First Amendment rights to freely express themselves in privately owned shopping malls.   

Shopping Centers & State Free Speech Rights—The Pruneyard Case

But there’s more to free speech rights than the First Amendment. In 1980, the Supreme Court handed down a key decision called Pruneyard Shopping Ctr. v. Robins (447 U.S. 74), that began when a California shopping center tried to ban high school students from trying to get shoppers to sign a petition protesting the United Nations resolution to condemn Zionism. Citing the importance of shopping centers to American life, the California Supreme Court held that “to prohibit expressive activity in the centers would impinge on [state] constitutional rights beyond speech rights.” The public areas of shopping malls are like the streets and sidewalks of the central business districts of cities, which have “immemorially been used for purposes of assembly, communicating thoughts between citizens and discussing public questions,” the court reasoned [Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979)].

The case reached the U.S. Supreme Court, which affirmed the general rule that citizens don’t have absolute First Amendment rights to enter and remain on private property to express themselves. However, the Court continued, states may confer free speech rights that are broader than those contained in the federal Constitution, including the right to use private property to express their views. And that’s precisely what California had done in its own state constitution, the Court concluded.

Since Pruneyard, public access rights to shopping center property has become a state-by-state issue. The constitutions of 34 states contain free speech provisions that are virtually identical to California’s. However, high courts in only five of those states (Colorado, New Jersey, Massachusetts, Oregon, and Washington—which, along with California, we’ll refer to as the “Pruneyard states”) have followed the lead of California in finding state free speech rights more expansive than those in the First Amendment. In these states, political groups and protesters have at least a limited right of public access to shopping center property that landlords and owners must respect.

Even so, the fundamental right of private property owners to keep out intruders remains a deeply embedded value. Thus, courts in the majority of states with free speech protections in their constitution, including Arizona, Connecticut, Georgia, Hawaii, Michigan, Minnesota, New York, North Carolina, Pennsylvania, South Carolina, and Wisconsin have gone the other way and upheld the rights of shopping center owners to bar protestors. Other states haven’t conclusively addressed the issue one way or the other.

The Business Case for Granting Protestors Public Access

While the jurisprudence is divided, public access for political groups and protestors remains an issue that shopping centers in all parts of the country must address, particularly during a presidential campaign season. A total ban on protest activity is out of the question if you’re in one of the six Pruneyard states. It might also be problematic even in states where the highest court doesn’t recognize public access rights under the state constitution. For one thing, the state legislature may adopt a statute expressly granting such rights.

On a more fundamental basis, surveys suggest that many if not most shopping center owners are willing to open their properties to orderly speech activities even if they’re not legally required to do so. These owners recognize and embrace the role of the shopping center as a public gathering place and venue for expression and political engagement. The last thing they want to do is insulate themselves from their communities.  

How to Create a Reasonable Policy

Whether you do it because the law requires it or because it’s good for business, allowing speech activities at your shopping center carries significant risks. That’s why it’s essential to establish ground rules to ensure they’re carried out in a legal and orderly fashion that minimizes the risks of disruption. But those ground rules for speech activities must also respect free speech rights, especially if you’re located in a Pruneyard state.

Rule of thumb: Under general free speech principles, owners of a public forum where free speech rights apply may not regulate the content of speech but may impose reasonable limits on the time, place, and manner (TPM) of speech. Accordingly, any shopping center that allows its property to be used for speech activities should implement a TPM policy. Like our Model Policy, your policy should include 10 basic elements.

1. Accessibility Policy Statement

Start with a general statement expressing your support for the rights of free speech and expression and willingness to make parts of your property accessible to certain forms of free speech-related activities, provided that they’re carried out in a lawful manner that doesn’t cause undue disruption [Clause, par. 1].

2. Policy Purpose

Explain that the purpose of the policy is to establish TPM restrictions that strike a reasonable balance between free speech rights and the center’s legitimate interests in maintaining orderly operations, meeting its compliance obligations, and protecting tenants, shoppers, and members of the public [Clause, par. 2].

3. Definition of “Speech Activity”

It’s crucial to define the kind of free speech activity that your policy does and doesn’t cover. Our policy defines “Speech Activities” as including demonstrating, organized protest, picketing, leafleting, circulating petitions, distributing written information, making speeches, and similar non-commercial activities. Based on attorneys’ recommendations, our definition excludes fundraising, solicitation of donations, and commercial activities involving advertising, marketing, and sales. Explanation: These excluded activities are generally subject to more limited protection under the First Amendment. Accordingly, you may want to implement a separate policy governing them [Clause, par. 3].

4. Time Restrictions

Get into the meat of the TPM restrictions starting with times when you permit speech activities at your shopping center, which should correspond with when your center is open for business—you don’t want these activities to be carried out when you’re closed. Specify exact times and don’t simply leave time matters to management’s discretion.

Example: A California court ruled that a TPM policy stating that “[t]he time during which political petitioning by a particular petitioner may take place shall be determined by center management based on [factors listed in another section of the policy]” was invalid because it gave management too much discretion. Because the criteria were so broad, management could apply them so as to make access decisions based on the content of the speech, such as by using time restrictions as a pretext to bar events for causes or political candidates it didn’t support [H-CHH Associates v. Citizens for Representative Govt., 238 Cal. Rptr. 841 (Cal. App. 1987)].

5. Registration Process

To maintain control over events, you need to know when they’re going to take place. So, require those seeking to carry out speech activities at your shopping center to get advance permission by submitting an application providing key information about the proposed event, including time, location, and equipment/furnishings it will require. While you should ask for a general description of the event, don’t ask about the cause, candidate, or anything else that may suggest that you based your decision to grant or deny permission on the substance of the speech. Specify that as long as speech activities meet all TPM requirements, you’ll grant permission on a first come, first served or other content-neutral basis [Clause, par. 4].

Strategic Pointer:

Deposits, Insurance & the Risk of “Prior Restraint” Liability

Although it’s not part of our Model Policy, some shopping centers require groups that want to engage in speech activities to post an upfront deposit to cover the costs of cleanup and potential damage and injury. If all goes well, the deposit is typically refunded after the event ends. Going a step further, some require the group to verify that it has a minimum amount of liability insurance coverage and even demand that the policy names the shopping center as an additional insured. Just recognize that the more burdensome your restrictions, the greater the risks of free speech litigation and liability, particularly under the First Amendment ban on “prior restraint,” a form of censorship that involves efforts to suppress speech or expression before it occurs.

5. Place Restrictions

It’s generally okay to limit speech activities to parts of your shopping center that are easiest to control and least likely to cause major disruptions, such as courtyards, hallways, and parts of parking lots away from central traffic lanes. As with time restrictions, place restrictions should be specific, objective, and as narrow as possible. Vague or overly broad restrictions raise red flags to the extent they make it possible to exclude activities based on the content of the speech. Attorneys say it’s also advisable to promise to use good faith efforts to find appropriate alternative space if the location the speech activity organizer wants is unavailable [Clause, par. 5].

6. Manner Restrictions

Impose manner restrictions governing how speech activities are carried out on your property. Don’t simply impose a general requirement that such activities be orderly and lawful. Specify the kinds of conduct that’s not permitted. At a minimum, make organizers responsible for ensuring that speech activities don’t:  

• Interfere with shopping center vehicle or pedestrian traffic [Clause, par. 6(a)];
• Disrupt shopping center or tenant essential business operations [Clause, par. 6(b)];
• Generate disruptive noise, which the clause defines as that which “is plainly audible” at a distance of 50 feet or more [Clause, par. 6(c)];
• Involve or promote violence, property damage, terrorism, obscenity, immediate and severe harassment of persons on shopping center property, or other illegal activities [Clause, par. 6(d)];
• Obstruct law enforcement personnel, fire fighters, or emergency medical service providers from carrying out their duties on shopping center property [Clause, par. 6(e)]; and
• Endanger the health and safety of any person on shopping center property [Clause, par. 6(f)].

7. Reaffirmation of Content Neutrality Principles

TPM restrictions that are neutral on their face may still violate free speech rights if you apply them so as to favor or disfavor particular causes, groups, messages, etc. So, after laying out your essential rules, affirm that they won’t be imposed “based on the content of the speech or expression or on the political, religious, or other opinions, ideas, and affiliations of speakers” [Clause, par. 7].

8. Assurance Against Heckler’s Veto

The “heckler’s veto” is a fundamental First Amendment principle that prohibits banning of speech simply because other people don’t like the message it conveys, even if the listeners may engage in violent or disruptive behavior in reaction to the speech. Application of the “heckler’s veto” in a shopping center is a tricky issue to the extent it affects a landlord’s ability to head off a potentially controversial and violent event at their property, such as where the Ku Klux Klan, for example, wants to stage a demonstration at the site. Although you should seek an attorney’s advice, generally speaking, your TPM policy should include a statement affirming heckler’s veto principles if your shopping center is located in a Pruneyard state; you may be better off omitting this provision if you’re in a state where owners of private shopping centers have the right to ban speech activities on their property [Clause, par. 8].  

9. Rules for Leafleting

The rights of those engaging in protected free speech activity to distribute pamphlets, leaflets, circulars, and others on private property is a complex legal issue. Our Model Policy allows for such activity as long as speech activities’ organizers agree to follow your TPM restrictions and take basic measures to pick up after themselves and prevent littering. You may have greater leeway to ban or impose greater restrictions on leafleting if you’re not in a Pruneyard state [Clause, par. 9].

10. Rules for Posting Signs

You’re generally allowed to impose reasonable restrictions on posting signs, posters, and other notices related to speech activities on the walls, doors, windows, and other indoor and outdoor surfaces and structures of your shopping center as long as the rules serve legitimate interests, like safety, sanitation, protecting tenants’ rights, etc., and you apply them consistently to all without regard to the content of the speech being expressed [Clause, par. 10].