PRIVATE PROPERTY AND PUBLIC SPEECHFor footnotes, refer to original document (NJ Lawyer Magazine, June, 1997).
The public forum in this country is shrinking -- legally and
factually -- as a consequence of two unrelated developments: the
narrowing of First Amendment doctrine and the privatization of
formerly public space.
But there is still some hope for free speech devotees thanks
to the forward-looking New Jersey judiciary, which is providing the
nation a beacon for protection of freedom of expression in the 21st
Where Have All the Public Forums Gone?
The legal assault on the public forum began in earnest in the
early Seventies as the Warren Court gave way to the Burger Court.
The high water mark had come in 1968 with the U.S. Supreme Court;s
decision in the Logan Valley shopping mall case. In an opinion by
Justice Thurgood Marshall, the Court recognized that suburban
shopping malls in many parts of the country had replaced the old
urban town squares and main street business districts:
[T]he roadways provided for vehicular movement within the
mall and the sidewalks leading from building to building are
functional equivalents of the streets and sidewalks of a
normal municipal business district. The shopping center
premises are open to the public to the same extent that as the
commercial center of a normal town. So far as can be
determined, the main distinction in practice between use by
the public of the Logan Valley Mall and of any other business
district ... would be that those members of the general public
who sought to use the mall premises in a manner contrary to
the wishes of the [owners] could be prevented from so doing.
Logan Valley built on earlier doctrine, most particularly
Marsh v. Alabama, the company town case. In an opinion by Justice
Hugo Black, the high court had thrown out the trespass conviction
of a Jehovah's Witness arrested for proselytizing on the main
street of Chickasaw, Alabama. The Court held that the First
Amendment protected the defendant's right of free expression even
though the streets and sidewalks of Chickasaw were wholly owned by
the steel mill where most of the residents were employed. Since
Chickasaw performed the same public functions as a governmental
body, it was subject to the same constitutional constraints.
Logan Valley was specifically overruled, and the continued
vitality of the "public function" principle relied upon in Marsh
put in question by a Burger Court ruling in 1976. Since that
time, the First Amendment has offered no protection to individuals
and groups desirous of disseminating their messages at the nation's
ubiquitous shopping malls, which have greatly proliferated in the
quarter century since Logan Valley. Moreover, the changed doctrine
foreclosed extending the public function concept to new areas in
the age of privatization.
The Privatization of Public Space
When the Supreme Court decided Logan Valley in 1968, the Court
reported there were between ten and eleven thousand shopping
centers in the United States and Canada accounting for 37 per cent
of the total retail sales in the two countries. By 1990, the
United States alone had 36,500 centers accounting for more than
half of all retail sales. The inevitable consequence has been the
increasing evaporation of the old public downtown business
districts and town squares (where activists were constitutionally
free to pass out literature and set up soap boxes) and their
replacement by privately owned suburban enclaves (where owners and
managers attempted to insulate patrons from public discourse and
This movement to privatize formerly public space has continued
just as dramatically in the realm of living arrangements. By 1992,
nearly one out of every eight Americans (32 million) lived in a
private community, ranging in size from 3-unit condominiums to the
19,000-unit planned community of Reston, Virginia. In the largest
metropolitan areas, at least 50 per cent of new home sales are in
The consequence of this privatization movement for grass roots
social and political movements is obvious. Beginning around World
War II, the United States Supreme Court issued a series of rulings
dealing with leafletting in public areas -- on public thoroughfares
and parks and door-to-door on public streets -- specifically
designed to protect what Justice Hugo Black referred to as "the
poorly financed causes of little people." Historically, such
social movements, without mass media advertising budgets, have
relied upon such types of grass roots organizing techniques. The
disappearance of public space leaves such groups less and less able
to communicate with their fellow citizens.
Focus on State Constitutions
The narrowing of the U.S. Supreme Court's "public function"
jurisprudence has seemingly left private owners -- commercial and
residential -- free to prohibit expression on their properties,
insofar as the First Amendment is concerned.
This has shifted the struggle for free speech in such arenas
to state courts and state constitutions. Shortly after Hudgens,
the California Supreme Court ruled that its own Constitution did
reach certain private conduct and essentially reinstated Logan
Valley as the law in California. A unanimous opinion of the U.S.
Supreme Court upheld California's right to interpret the free
speech provisions of its own constitution more expansively than the
First Amendment, and rejected the shopping center's argument that
the state decision constituted a taking of property without
compensation. The Pruneyard decision shifted the legal struggle
to protect free speech in privatized public fora to the state
New Jersey Takes the Lead
While California showed the way, it is indisputable that the
New Jersey courts are now pioneering the constitutional map in ways
which promise to keep open the channels of grass roots
communication in the new millennium.
Even prior to Pruneyard, the New Jersey Supreme Court had
recognized that the state law protected rights of communication and
expression against infringement by some non-governmental entities
in a position to exercise dominion over others. State v. Shack
involved a trespass prosecution of a Legal Services worker who
entered a private landowner's property in an effort to provide
assistance to migrant farmworkers housed thereon. In dismissing
the prosecution, the State Supreme Court ruled:
Property rights serve human values. They are recognized to
that end, and limited by it. Title to real property cannot
include dominion over the destiny of persons the owner permits
to come upon the premises. Their well-being must remain the
paramount concern of a system of law.
Although the opinion was not rested on the New Jersey
Constitution, the Supreme Court relied upon Shack nine years later
in ruling that the Article 1 6 and 18, the free speech
provisions of the New Jersey Constitution, protected the
distribution of political flyers on the private Princeton
University campus. Rejecting the U.S. Supreme Court's sharp
public-vs.-private-property dichotomy articulated in the 1974
shopping mall case, the unanimous State v Schmid opinion stated:
Since it is our State Constitution which we are here
expounding, it is also fitting that we look to our own strong
traditions which prize the exercise of individual rights and
stress the societal obligations that are concomitant to a
public enjoyment of private property.
Finally, in 1994, in its own shopping mall case, the New
Jersey Court, in a lengthy opinion by Chief Justice Wilentz,
articulated a full-blown theory of public-forum protection under
the State Constitution. In so doing, the Court reached back into
the federal constitutional jurisprudence of a half century before
and adopted as its own the public function doctrine of Marsh v.
We also find as support for our conclusions an enduring
principle recognized in Marsh, a principle that remains
pertinent for our purposes even though it has not been
accepted in this context as a matter of federal constitutional
doctrine. The principle of that case ... is that the
constitutional right of free speech cannot be determined by
title to property alone. Thus, where private ownership of
property that is the functional counterpart of the downtown
business district has effectively monopolized significant
opportunities for free speech, the owners cannot eradicate
those opportunities by prohibiting it.
The Chief Justice then added a comment of special significance for
other social trends which impact upon the availability of public
forums in an era of growing privatization:
[I]f the people have left for the shopping centers, our
constitutional right includes the right to go there too, to
follow them, and to talk to them.
We do not believe that those who adopted a constitutional
provision granting a right of free speech wanted it to
diminish in importance as society changed, to be dependent on
the unrelated accidents of economic transformation, or to be
silenced because of a new way of doing business.
To emphasize the point, the Wilentz opinion, referring to New
Jersey's constitutional protections for freedom of expression,
observed that "constitutional provisions of this magnitude should
be interpreted in light of a changed society." The Court thus
made it clear that the Coalition decision was not merely a narrow
ruling applicable to shopping centers, but posited an entire
jurisprudence of free speech in the age of privatization.
The most analogous area to which this principle might be
applied would appear to be private residential communities. If
free speech was not to be silenced by "a new way of doing
business," (at suburban shopping malls) why should it be silenced
by a new way of living (in private communities)?
If under earlier free speech doctrine, proselytizers had the
right to walk down public streets and knock on every door to
disseminate their political and social messages, what kind of
rights do they retain when those formerly public streets are
privatized? When 50 per cent of one's neighbors have relocated to
such private communities, are grass roots groups foreclosed from
the most effective means of communication formerly available to
promote the "poorly financed causes of little people"? Should such
grass roots organizers have the right to follow their neighbors
into their new communities just as they can now follow them into
the shopping malls?
The first major test of this issue has just been litigated in
a case out of Guttenberg involving a high-rise residential
community, the Galaxy Towers. The Galaxy, home to one-quarter of
the registered voters in the municipality, was a self-contained
community with on-site parking and a mini mall accessible from the
buildings' lobbies. The condominium association took an active
part in local politics, supporting candidates in town council and
school board elections and carrying out an active get-out-the-vote
campaign for endorsed slates.
Opposition candidates sought permission to distribute election
materials in the building in the same manner that the association
did -- i.e. slipping flyers under apartment doors during the week
before Election Day. Such requests were routinely denied. Suit
was filed in the Hudson County Chancery Division seeking access to
the building on behalf of a competing slate in the 1994 school
After an initial dismissal, the Appellate Division heard the
appeal after the Supreme Court had decided the Coalition case, and
remanded for reconsideration in light of the Wilentz opinion. The
Appellate Division opinion favorably cited a pre-Schmid opinion by
Judge Bachman, sitting in Middlesex County Court, voiding a
trespass conviction of petition-gatherers who had canvassed the
private Rossmore retirement community to collect signatures on
petitions for a change in the form of local government. Judge
Bachman had warned against allowing such private communities to
become "political isolation booth[s]."
On remand of the Galaxy case, Chancery Judge Martin I.
Greenberg held for the plaintiffs after a plenary hearing and
issued an order requiring the condominium association to allow the
plaintiffs to distribute election materials in the building "in the
same manner and to the same extent" that it did. Judge Greenberg
also "dr[ew] guidance" from Judge Bachman's 25-year-old Kolcz
opinion after noting that under the Supreme Court's Colalition
ruling, the decision rested "ultimately upon a balancing of the
right of free expression and the right to private property."
Finding that the plaintiffs had "no meaningful substitute for
'door-to-door' communication," Judge Greenberg held:
A level playing field requires equal access to this
condominium because it has become in essence a political
"company town" ... in which political access controlled by the
association is the only "game in town."
Judge Greenberg's ruling was unanimously affirmed by the Appellate
Division in December and, at this writing, a petition for review
is pending before the State Supreme Court.
It should be pointed out that the Galaxy case is limited to
what is in essence a right of reply. The association still
controls access to its property. If it decides to cease handing
out election materials to its members, plaintiffs lose their right
But clearly, together with the Coalition opinion of Chief
Justice Wilentz, the Galaxy case raises profound issues concerning
communication of ideas in an increasingly privatized society. With
the U.S. Supreme Court operating with blinders on when it comes to
viewing public forum doctrine, other state courts now have an
alternative model for defining the real public forum in a new
millenium where the title to formerly public space resides more and
more in private hands.