The Exercise of Free Expression in Shopping Centers

M. Rosie Rees, Partner & assisted by Peter P. Massumi
Illinois Real Estate Journal
October 14, 2004

Shopping center owners across the country have been concerned in recent years about laws that require them to permit access to shopping centers by individuals and groups exercising their free speech rights. Labor unions, political parties, and political activists, among others, have challenged shopping centers that have denied them access in a variety of circumstances.

To date, of the 24 states whose courts have ruled on the issue, only four states (California, Colorado, Massachusetts, and New Jersey) have definitively held that private shopping center owners must permit such access, and in several instances, the courts agreed that the mall owner could reasonably regulate the manner in which such access was permitted. In these states, the courts have balanced certain rights granted to citizens under state laws (e.g., rights of free speech, freedom to petition the government, free elections) against the private property rights of shopping center owners. In some instances, they found that the large, regional shopping centers had replaced the "main street" of yesteryear as a public venue, and so it was necessary to permit the exercise of free speech activities.

In cases where the courts have rejected the right of access, they have usually based that rejection on a finding that the state's constitution established certain personal freedoms from governmental interference, but did not require private parties to accord persons and groups the same freedoms. In those cases, the courts found insufficient governmental involvement in the shopping center to hold that the shopping center owner was acting as a government entity when it denied access for free speech purposes. Where obvious governmental involvement occurred, however, as in North Dakota, where the city owned the shopping center, the North Dakota Supreme Court held that access for abortions protestors was required.

The U.S. Supreme Court has also held that the First Amendment of the U.S. Constitution does not require private property owners to grant access for free speech purposes; although it has recognized that the states have the right to interpret their laws regarding freedom of speech more broadly.

To date, Illinois is among those states that have upheld a private property owner's right to deny access. In the precedential Illinois case, Illinois v. DiGuida, 152 Ill. 2d 104, 604 N.E.2d 336 (1992), the Illinois Supreme Court refused to follow those states which have broadly interpreted their state's constitutional free speech protections.

In DiGuida, Paul DiGuida was gathering signatures on a nominating petition for a Cook County political candidate. He stood on a covered walkway near the entrance to a Dominick’s grocery store on Dominick's property in Evanston, Illinois. Dominick's was the only retail store in that location; it was not part of a larger shopping center. The covered walkway where DiGuida was standing was adjacent to a public sidewalk. The store manager asked DiGuida to leave the property, and when he refused, the police were called. DiGuida was arrested, and later convicted, for criminal trespass to land.

DiGuida appealed his conviction, arguing that the free speech and free elections provisions of the Illinois Constitution prohibited Dominick's from denying him access to its property for purposes of soliciting signatures for a political candidate. The Illinois appellate court reversed DiGuida's conviction, but the Illinois Supreme Court upheld it.

The Supreme Court held that the free speech protections in the Illinois Constitution protect the people of Illinois against governmental interference only. It does not regulate the rights and powers of private individuals in their relations with others. Thus, article I of the Illinois Constitution was applicable in this case only if Dominick's "had taken on such a public aspect that it became a forum for free speech.”

The court noted that Dominick's was a freestanding grocery store. It was not a shopping center or even a department store. It did not house any governmental agencies on its premises, nor were governmental funds used to build or maintain the store. And although it was surrounded by a private paved area, a public sidewalk was in close proximity to the store's entrance. The court also held that Dominick's had not violated DiGuida's right to free and equal elections under article III of the Illinois Constitution because it too required state action. The court thus concluded that the evidence was insufficient to establish Dominick's as a forum for free expression. Even though Dominick's had not posted signs prohibiting solicitations at the store, and it permitted people to leave messages on a bulletin board inside the store, the court determined that Dominick's did not give the impression that its property was public in nature and open to expressive activities. Thus, Dominick's was entitled to evict, and the court was entitled to convict, DiGuida as a trespasser.

It is worthy of note that although the Illinois Supreme Court upheld the rights of the property owner over the individual's right of free expression in the DiGuida case, the circumstances of this case appear to have been determinative. The court focused heavily on the qualities that made the Dominick's store not a public forum. It was not part of a shopping center. It was not a department store. A public sidewalk within easy reach of shoppers entering the Dominick's store was readily available to DiGuida. No public funds were used to finance or maintain the Dominick's store nor was any agency of the government housed in the building.

It is certainly open to question as to how the Illinois Supreme Court would balance the interests in a different case, for example in the case of a regional shopping center in a small town, where the shopping center is surrounded by a large parking field, has been financially supported by governmental funds for its development, possibly houses a public library, and has virtually become "main street" for purposes of free speech activities.

It would therefore behoove owners of shopping centers in Illinois to tread lightly. Instead of prohibiting access for free speech activities, it may be the better part of valor to permit access but to reasonably regulate the time, place and manner of such activities.

Rosie Rees is a partner at Pircher, Nichols and Meeks, a law firm with offices in Chicago and Los Angeles specializing in real estate law.