As shopping centers replace Main Street for more and more Americans, the right to exercise free speech there is competing with the rights of mall owners. This is especially noticeable during election time, when leafleteers and campaigners, trying to reach large numbers of voters, are out in full force.
Because shopping malls are privately-owned areas, where shops and stores lease space, access to corridors, walkways, and parking lots is restricted.
Over the last few years, court cases in nine states have reaffirmed the supremacy of private property rights over First Amendment rights in permitting unlimited expression of free speech in shopping malls. And the United States Supreme Court has ruled that an unconstitutional taking of property occurs when there is an unreasonable interference with a property owner's ``reasonable investment-backed expectations.''
But in several states, including Michigan and New York, state legislatures have taken up the issue. Laws to permit limited access have been introduced. The situation affects not only politicians, but others seeking to gain support for public causes.
Steven Shapiro of the American Civil Liberties Union, which has argued on behalf of the First Amendment rights in several cases, believes the issue will spread, ``because it's the cheapest, most efficient way to reach the largest number of people.''
Last year the Michigan Citizens Lobby brought suit in the Michigan Supreme Court to open access to shopping malls. ``We were seeking signatures to place issues on the ballot, like proposals to regulate utility rates,'' states Joe Tuchinsky, the organization's executive director. Because the court ruled in favor of the property owners, the Citizens Lobby is turning to the state legislature for redress.
Peter Linzer, now a professor of law at the University of Houston, represented the Citizens Lobby in its case. ``There is a lot of emphasis now in many states to do it by the legislatures,'' Linzer reports. Beyond the right to distribute leaflets, he adds, ``it becomes a crucial issue in states like California and Michigan, that have the right to place a referendum on the ballot.
Legislation has been introduced in several states to accommodate the demographic change and still protect the property rights of owners.
In New York, a bill to permit limited access in shopping malls larger than 250,000 square feet, and housing 10 or more stores, will be introduced when the legislature reconvenes. Supporters argue that in an area that size, the potential for disruption of business is slight.
Working on the senatorial campaign of Democrat Mark Green in New York, volunteer staff coordinator Steve Cancian is familiar with the restrictions.
In a state with nearly 500 shopping malls larger than 100,000 square feet, Mr. Cancian advises workers ``to leaflet only by walking around, but not to set up tables.''
The ACLU's Shapiro sees some change of resolution at the state legislature level. ``It disadvantages politicians, too. They want to be able to do their campaigning at the shopping malls, where the people are.''