Private Property, Public Property: Shopping Centers and Expressive Freedom in the States

Abstract

I. SHIFTING LIFE STYLES AND AN UNCERTAIN LEGAL ORDER The growth of suburban shopping centers in the decades following the end of World War II has had far more pervasive ramifications than merely effecting a change in the ways that goods and services are displayed, dispensed, and sold. Proliferating and ever-expanding malls, usually located along or adjacent to major highways, increasingly have come to replace traditional municipalities as loci for the conduct of a host of activities.(1) No longer are areas looked upon as the exclusive or even the principal locations for such pursuits. Instead, shopping centers have come to serve as the primary means of carrying on many businesses formerly confined to central cities.(2) With the dramatic reassignment of commercial resources and functions, earlier notions of city streets as the foremost places for the dissemination of ideas and views, often on controversial issues of political or social significance, have taken on a less compelling demeanor.(3) If shopping centers have not completely displaced specified sections of cities in fostering these and related activities, it is clear that a new era has opened, requiring reconsideration of established institutional arrangements as well as an examination of the problems that they pose.(4) As often happens when events outrun and outdate prevailing norms, the legal system must adapt to societal changes, especially those brought on by major shifts in interests and attitudes. The role of shopping centers as places for those who seek to influence opinion has raised serious questions for reviewing courts--questions that often create well-nigh insoluble dilemmas.(5) Regardless of changing perceptions of appropriate locations for the conduct of community as well as commercial affairs, shopping centers remain private property, in theory if not always in fact. It is difficult to assume an easy conversion of such resources to the domain simply because of altered outlooks and what may appear to be a more convenient way of managing businesses and providing access to speakers.(6) Technological advances and changing life styles, in themselves, do not suffice to justify such a transformation. Constitutional safeguards, linked to the protection of private property, continue to apply unless a convincing case can be made to warrant the required conversion.(7) Any device, notwithstanding its novelty and inventiveness, must be sustainable by some rudiments of minimal legality and rationality, albeit challengeable ones. The first attempt to provide a plausible constitutional basis for the protection of free speech guarantees on private property occurred in the mid-1940s.(8) In an oft-noted case, Marsh v. Alabama,(9) the United States Supreme Court, speaking through Justice Hugo Black, held that First and Fourteenth Amendment rights applied when the owners and operators of a company town sought to prevent the distribution of religious literature in the town's downtown business district.(10) Adhering to familiar concepts of constitutional relativism, the Court imposed a sliding scale that diminished exclusionary private interests as the owner increasingly opened the property in question to expanded use.(11) If, as the majority maintained, the town displayed many of the attributes of a municipality, the state action requirement was satisfied for constitutional purposes in sustaining rights of free speech.(12) In fact, the Court devised a form of public function analysis as the basis of a state action finding.(13) To ensure an informed citizenry, the Court declared, access to information had to be uncensored in a decisionmaking process that affected the welfare of the community and the nation.(14) Striking a balance, citizen rights emerged as paramount when compared with those asserted by the property owner.(15) Yet Justice Black subsequently asserted, in Amalgamated Food Employees Union Local 590 v. …