HARTFORD, Conn. The shopping mall may be replacing the village green as a meeting space, but the state Supreme Court ruled yesterday that the suburban fortresses of capitalism need not provide the same free-speech protections as a city street.
In a unanimous decision, the high court ruled that managers at the Crystal Mall in Waterford legally prohibited union members from distributing literature there.
Union officials argued the mall was not a completely private entity, because of its size and the government’s oversight of its construction and operation.
“The size of the mall, the number of patrons it serves, and the fact that the general public is invited to enter the mall free of charge do not, even when considered together, advance the plaintiff’s cause in converting private action into government action,” Justice Joette Katz wrote.
The decision directly addresses a question still being worked out in courts around the country: Is the local mall the modern equivalent of history’s town square, or is it just a giant bubble of private property?
Federal courts have held that the U.S. Constitution provides no public assembly rights in privately owned shopping centers. But state courts are allowed to adopt greater protection for free speech on private property.
Five states California, Colorado, Massachusetts, New Jersey and Washington have held that the government may require mall owners to permit some political activity in common areas of the mall.
The California and Washington decisions relied on public-referendum laws, in which proposed laws can be put on the ballot if enough signatures are collected. Connecticut does not have such a law.
Massachusetts allows political candidates to collect signatures in malls. New Jersey and Colorado allow people to leaflet on societal issues.
“Although the ultimate purpose of these shopping centers is commercial, their normal use is all-embracing, almost without limit, projecting a community image, serving as their own communities,” the New Jersey Supreme Court held in 1994.
Connecticut’s high court also sided with mall owners in a suit against Westfarms Mall in 1984, when the National Organization for Women was denied permission to solicit shoppers. The court found that no state action had been taken to interfere with free speech.
In the case decided yesterday, attorneys for Local 919 of the United Food and Commercial Workers Union argued that the mall was built with the intention of becoming the new town center and received extensive government oversight.
Mall owners argued they had the right to protect their private business interests.
“Once you get into all of this other stuff, with potentially protesters, signs and placards, you’re taking on a role more typically handled by state and local governments, not by private businesses,” attorney Charles D. Ray said.
The court left open the possibility that the Connecticut Constitution might allow for greater protection of freedom of speech inside malls under other circumstances.
Attorney J. William Gagne Jr., who represented the union, said it’s significant that the court did not close the door on future cases.
Paco Underhill, author of a new book Call of the Mall, said owners are increasingly billing malls as attractions rather than simply shopping centers. Movie theaters, amusement park rides and fine restaurants are being included.
“As they start to think of what it takes to be a public space, they have to think of what comes with it,” Underhill said.
He said the issue is even more pressing out West, where malls have become the only high-traffic areas for several towns.