The United Mall of America: Free Speech, State Constitutions, and the Growing Fortress of Private Property
Scholars have called the shopping mall the modern replacement for the traditional town square, a claim that is supported by both public investment in infrastructure through municipal and state bond issues and by the presence of public services and events in many malls. Mall owners and tenants have exploited this quasi public character by inviting government agencies to become tenants in the malls (“City Hall at the Mall”) despite claiming that malls are private property where constitutionally protected freedoms do not apply. After an initial and shortlived ruling that mall visitors do indeed have free speech rights, the Supreme Court has held that the standard constitutional protection for political speech does not apply to malls and shopping centers because no state action is involved. Many, though not all, state courts have agreed with the Supreme Court’s ruling. This Note addresses two kinds of evolution: the legal evolution of free speech law as it relates to shopping malls, with particular attention to the Minnesota Supreme Court’s recent rejection of free speech protection in State v. Wicklund; and the cultural evolution in which our public spaces have become private fortresses, “protected” from political speech in the interests of providing “safe” and unmolested shopping experiences for consumers. The Note then discusses the common rationale underlying the decisions in a handful of state courts that have extended free speech protection to those who wish to protest, leaflet, or picket at malls. Based on these decisions, the author argues that state courts should be more flexible in their balancing of free speech rights and property rights if we are to stem an evolutionary process in which our public space becomes a vast emporium where citizens are encouraged to buy but forbidden to speak.