State Constitutional Free Speech Vis-a-Vis Private Landowners

Apropos the post about the New Jersey homeowners’ association case, here’s a quick summary, as of a few years ago, of the approaches taken by the few states that have applied their state free speech clauses to limit not just government action but also some private landowner action:

1. Under California law, large multi-store shopping malls must allow leafletters, signature gatherers, and other speakers (subject to reasonable content-neutral time, place, and manner restrictions). See Golden Gateway Center v. Golden Gateway Tenants Ass’n, 29 P.3d 797 (Cal. 2001); PruneYard Shopping Center v. Robins, 592 P.2d 341 (Cal. 1979). The theory is that the property owner has voluntarily opened this property to the public, for a wide range of purposes (including eating, seeing movies, socializing, and the like), and that it should also therefore be required to allow the public to speak there. Stand-alone stores, office buildings, and apartment buildings remain generally free to exclude private speakers, since their owners haven’t voluntarily opened their property to the public for a wide range of purposes.

2. Pennsylvania seems to apply such a rule, but only if the property owner has deliberately opened the property for public debate, not just for various business and social uses. Malls generally don’t qualify, but private universities may. See Western Pa. Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 515 A.2d 1331 (Pa. 1986), discussing Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981).

3. New Jersey has a California-like rule, but also covers universities. See Green Party v. Hartz Mountain Industries, Inc., 752 A.2d 315 (N.J. 2000); New Jersey Coalition Against War in the Middle East v. J.M.B., 650 A.2d 757 (N.J. 1994); State v. Schmid, 423 A.2d 615 (N.J. 1980).

4. The Colorado rule apparently requires private mall owners to allow speakers only if the private mall is somehow specially intertwined with the government, for instance if the government has substantially subsidized the mall (which is irrelevant under First Amendment law, see Rendell-Baker v. Kohn, 457 U.S. 830 (1982)) or if the government uses space in the mall for traditional government functions, such as a police substation. See Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991).

5. Under Massachusetts law, large shopping malls must let people gather signatures to qualify a candidate or an initiative measure for the ballot. See Batchelder v. Allied Stores Int’l, Inc., 445 N.E.2d 590 (Mass. 1983). This decision, though, was based on the election provisions of the state constitution, not on the free speech provision. Massachusetts courts haven’t decided whether other kinds of speech are protected under the state free speech clause.