Judge says mall’s regulations on leafleting
violate free speech
Associated Press, 9.1.98
JERSEY CITY, N.J. — Building on a landmark decision permitting political leafleting at malls, a state judge has ruled that a mall in Secaucus can not require activists to obtain insurance and meet other requirements.
Superior Court Judge Martin L. Greenberg found Friday that the rules issued by the Mall at Mill Creek in Secaucus violated the free-speech provisions of the New Jersey Constitution.
The state Supreme Court ruled in 1994 that several shopping malls, including the Mall at Mill Creek, were violating free-speech rights when they prevented a group of peace activists from handing out leaflets urging members of Congress to oppose the buildup to the Gulf War. The court said shopping malls constituted a modern-day Main Street and must allow groups to hand out leaflets on political and social issues. However, the ruling said the malls could develop regulations to control the leafleting.
Mill Creek then required any group wishing to leaflet or collect signatures to obtain a $1 million liability policy and agree to hold the mall blameless for any lawsuits that result from their activity.
The Green Party of New Jersey sued the mall in 1996, assisted by the state chapter of the American Civil Liberties Union and the Constitutional Litigation Clinicat Rutgers Law School in Newark.
Greenberg held "as a practical matter, the insurance and hold harmless requirements act as a de facto ban on free speech because these regulations are cost prohibitive and difficult to obtain due to political beliefs."
The Mill Creek regulations "deny groups the ability to follow society to shopping centers and therefore the right to exercise free speech" at public gathering places, Greenberg wrote.
Among the regulations he overturned was one that limited groups to activity once a year.
Mill Creek lawyer Curtis L. Michael said Monday that the mall would probably appeal.
"Numerous" groups met the requirement, with only the Green Party protesting, Michael said. He estimated the cost of the liability coverage at $600 a year.
Rutgers law Professor Frank Askin, who represented the Green Party, said that is too much money for small groups.
The case arose when members of the New Jersey Draft Nader for President Committee were barred from distributing leaflets at the mall in support of Green Party candidate Ralph Nader.
In response, Greenberg temporarily halted enforcement of the regulations, allowing the group to distribute the leaflets without buying insurance.