Shopping malls may be the new town squares in many respects, but in Minnesota and many other states, citizens leave their free speech rights at the door.
The Black Lives Matter protesters who rallied inside the Mall of America last December drew attention not only to police practices and race relations, but also the rights to assemble and speak at shopping malls and other private property.
Or, stated more accurately, the lack of such rights.
The protesters were warned that the law of the mall had been settled and demonstrating there would bring trespassing charges. In 1999, the Minnesota Supreme Court held animal-rights activists were trespassing when they protested fur-coat sales at the huge mall – although parts were designed to mimic Main Street and it benefited from public financing when built.
With that case, State v. Wicklund,1 Minnesota joined the majority of states, where private-property rights trump free-speech rights in shopping malls. Mall law in these states parallels federal law, which once provided for First Amendment access to privately owned malls but no longer does.
A few states have developed different rules under their state constitutions. The cases resulted not from provocative protests against retailers as in Wicklund but rather involved situations when persons sought access to malls for political purposes unrelated to mall operations.
Arguably, the Black Lives Matter demonstrations were more political than provocative. Perhaps Wicklund– can be distinguished on that ground. Regardless, the protesters did succeed in triggering a broader discussion about the right to speak on private property, a right the United States Supreme Court granted in 1946 and rescinded three decades later.
Access Granted, Access Denied
Mall law began not in a mall but on the “business block” of a company town, Chickasaw, Ala., near Mobile. On Christmas Eve 1943, Grace Marsh, a Jehovah’s Witness, was arrested for distributing Watchtower magazines in the town, built and owned by Gulf Shipbuilding Corporation.2
Twenty-five months later, in Marsh v. Alabama, the United States Supreme Court reversed the conviction. In an opinion by Justice Hugo Black, a former Alabama senator and staunch supporter of religious expression, the Supreme Court held the company town could not exclude religious expression any more than owners of private bridges and roads could interfere with interstate commerce.3
Mall law’s seed had been planted, and it germinated in the 1950s and ’60s as Main Street was privatized in Minnesota and nationwide.
The nation’s first enclosed mall was Southdale Center in Edina, built in 1956. Brookdale followed in 1962 and Rosedale seven years later. Malls developed outside the Twin Cities too, such as Rochester’s Apache Mall in 1969. Even small towns caught mall fever. In 1969, the federal government awarded Le Sueur $1.5 million so a private developer could build an enclosed, block-long mall literally on top of Main Street.
Meanwhile, unions flexed their muscle as the nation debated civil rights, the Vietnam War, and the right to protest both. Against that backdrop, mall law bloomed in 1968 when the Supreme Court held in Amalgamated Food Employees Union v. Logan Valley Plaza that union members had a right to picket a non-union store where the shoppers picked up groceries.4
Justice Black dissented and scolded the majority for misapplying his precedent. “I cannot conceive how such a pickup zone, even by the wildest stretching of Marsh v. Alabama, could ever be considered dedicated to the public or to pickets,” he wrote.
Six months later, mall law was tested when anti-Vietnam War activists entered a Portland, Oregon shopping mall to distribute handbills inviting shoppers to protest the draft. A district court found in their favor but the United States Supreme Court reversed, holding in 1972 in Lloyd Corporation v. Tanner that the mall could exclude the pamphleteers.5 The court relied on the dissent of Justice Black, who had died the previous year, and dismissed the company town as “an economic anomaly of the past.”
Any thought that organized labor had a right to access malls was eradicated in 1976 when the Supreme Court held in Hudgens v. NLRB that private malls are not state actors and therefore have a right to exclude even union speech.6
With Tanner and Hudgens, mall law had been transformed. But as the nation celebrated its bicentennial, mall law was poised for another surprising turn.
Justices Thurgood Marshall and William Brennan dissented in Hudgens. A year later, Justice Brennan wrote a Harvard Law Review article titled “State Constitutions and the Protection of Individual Rights,” which urged states to employ the “font of individual liberties” under state law.7 The California Supreme Court did so with respect to shopping malls in 1979, holding in Robins v. Pruneyard Shopping Center that high school students had a state constitutional right to collect petition signatures at a privately owned mall.8
The mall’s owner appealed to the United States Supreme Court and likened the holding to a governmental “taking” of private land. Nevertheless, the Supreme Court held unanimously that states could use their state constitutions to provide free-speech rights on private property if they chose to do so.9
Minnesota had not considered the mall-law question when 10 animal-rights activists entered the Mall of America in May 1996 to persuade Macy’s shoppers not to buy fur coats. State supreme courts in Colorado, Massachusetts, New Jersey, and Oregon had followed California’s lead, but in cases where access was granted for political purposes such as collecting petition signatures and distributing leaflets about U.S. policy.10
Many more courts had interpreted their state constitutions consistent with Hudgens. Among them was the Wisconsin Supreme Court, which in 1987 held in Jacobs v. Major that a graduate student had no state-constitutional right to present a “choreographed depiction of the results of nuclear warfare as a political statement” inside a Madison mall.11
Jacobs was a 4-3 decision. The shopping mall’s role in society was not lost on Justice Shirley Abrahamson, who in her dissent described malls as the “new downtowns” where entrants “stroll, socialize and participate in community activities as they once did in downtown business districts.”
Justice Abrahamson also explained Article 1, Section 3 of the Wisconsin Constitution was different from the First Amendment because its plain language did not restrain only government from abridging free speech but affirmatively ensured that “every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right …”
She reasoned Article 1, Section 2 of the state Bill of Rights, which forbade slavery, would be enforced irrespective of state action and “there is no principled way to distinguish between secs. 2 and 3 with respect to the state action limitation.”
Minnesota’s Mall Law
Sections 2 and 3 of the Minnesota Constitution’s Bill of Rights contain the same anti-slavery and free-speech language as Wisconsin’s Constitution. But in the 1999 Wicklund opinion, the Minnesota Supreme Court cited Jacobs v. Major only in a footnote and did not cite Section 2 at all.
The court held unanimously that the Minnesota Constitution was triggered only by state action. In making Minnesota’s mall law parallel federal law, the court focused on the public-private flavor of the Mall of America—that it was built with tax-increment financing, leased space to a public post office and school, and invited shoppers.
But those factors did not compel a conclusion that the mall had assumed the “power, property and prestige” of government such that the Minnesota Constitution’s free-speech provision could be triggered. As the court explained, the mall invites shoppers “to come to the mall and spend money,” and an invitation “creates only a license which may be revoked, as it was here.”
The court did distinguish the nature of the animal activists’ speech as “directed at persuading shoppers to forgo buying fur products and to boycott Macy’s” and not “to achieve some political goal such as a ballot initiative.” In light of that language, Wicklund might leave room for litigants to argue malls should provide access political purposes. However, protesters who make that assumption likely proceed at their own peril.
Any change in mall law might be a matter for city councils and the legislature. For example, a Minnesota statute requires owners of privately owned manufactured-home parks to accommodate free speech.12
Still, much has changed since Wicklund. Social networking has made it easier to organize protests while internet retailing has hit malls hard. To stay viable, many malls have incorporated storefronts and even streets and sidewalks that look more like Main Street than the Mall of America does and somewhat resemble the company towns the United States Supreme Court dismissed in 1972 as an “economic anomaly of the past.”
Whether mall law—like retailing itself—is poised for more evolution remains to be seen.
Steven P. Aggergaard is a shareholder at Bassford Remele, PA in Minneapolis, where First Amendment-related matters are part of his practice.
1 589 N.W.2d 793 (1999).
2 Marsh v. State, 21 So. 2d 558 (Ala. Ct. App. 1945).
3 326 U.S. 501 (1946).
4 391 U.S. 308 (1968).
5 407 U.S. 551 (1972).
6 424 U.S. 507 (1976).
7 90 Harv. L. Rev. 489, 491, 502 (1977).
8 592 P.2d 341 (Cal. 1979).
9 Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980).
10 Wicklund, 589 N.W.2d at 800-82 & n.8 (citing cases).
11 407 N.W.2d 832 (Wis. 1987).
12 Minn. Stat. §327C.13.