Public Access: Oregon Court Ruling
 
March 1, 1999
 

In a recent decision, the Oregon Court of Appeals held that a privately owned shopping center is a public forum, and a shopping center owner may not lawfully prohibit an individual from engaging in certain constitutionally protected activities on shopping center property.

In the case of Stranahan v. Fred Meyer Inc., a shopping center security guard arrested a political activist as the activist solicited mall patrons in front of the center to sign a proposed ballot initiative. The activist subsequently sued the shopping center owner for false arrest.

The Stranahan court held free speech provisions of the Oregon State Constitution guaranteed an individual's right to gather signatures at the shopping center and at certain other private places where the public is invited. The court upheld an award against the shopping center owner in excess of $2 million.

Although a shopping mall is a private commercial enterprise, it is easy to understand why a shopping center may be deemed a public forum. In our increasingly suburbanized society, the shopping mall serves as the modern-day equivalent of the old-fashioned town square. The shopping center attracts large crowds from nearly every walk of life. People of all ages congregate to eat, window shop, meet friends, enjoy movies or to participate in one of America's favorite pastimes: conspicuous consumption. Some "pop-in" to the mall for a brief visit while others tend to linger. Given the heavy volume of local traffic, the shopping center is a logical place for an individual to express political or social views to a wide and captive audience.

Whether a shopping center owner must allow public access for political and other noncommercial activities involves a balancing of interests. On one hand, a property owner's right to exclude others is one of the most important "sticks" in the owner's bundle of property rights. On the other hand, freedom of speech is a basic and fundamental individual right. Stranahan highlights the inherent tension between these two competing interests.

In order to comprehend the implications of Stranahan, it is essential to understand the legal context surrounding this case.

In the case of Pruneyard Shopping Center v. Robbins, the U.S. Supreme Court articulated the current standard for public access to shopping centers. The Supreme Court held the State of California could require a large shopping center to allow public access for political petitioning on the theory that a large shopping center is the functional equivalent of a municipality or downtown business district and, therefore, is a public forum. Denying the center's right to exclude did not rise to the level of a taking under the U.S. Constitution (which would have required compensation) since it did not unreasonably impair the value or use of the property as a shopping center. Pruneyard, however, clearly states that a shopping center owner may establish reasonable time, manner and place restrictions on public access in order to minimize interference with the center's commercial activities.

Since Pruneyard, several states in addition to California have recognized a constitutional right for citizens to speak or assemble on private property such as shopping centers. These states include Colorado, New Jersey, Massachusetts, Pennsylvania and Washington. For example, the Supreme Court of Colorado held that certain private commercial and retail centers are required to allow political groups to distribute pamphlets and solicit signatures on the premises. More recently, in 1994 New Jersey's highest court held that regional shopping centers are constitutionally required to permit distribution of leaflets relating to political and social issues.

Following Pruneyard and its progeny, Stranahan held the Oregon Constitution confers upon an individual the right to gather signatures on political petitions in common areas of certain shopping centers. In deciding which shopping centers are required to permit public access, the Stranahan court summarized various relevant factors:

"We have considered factors such as the size and configuration of the premises, its relationship to other businesses in the area, whether the premises are bordered by public or private properties, whether the premises are intersected by public streets and sidewalks, whether the premises and adjoining multiple privately owned businesses open directly onto public areas, and whether there are public transportation stops adjacent to the premises.

Also pertinent to the inquiry are the scope of business endeavors that are included in the surrounding area and conducted on the premises, the characteristics of the invitation to the public by the businesses in the area, the availability of areas for the public to congregate for noncommercial purposes, the number of people who frequent the premises and the purposes for which the premises and common areas are used."

The Stranahan court noted that Fred Meyer, the landlord, sold an array of consumer products designed to meet a wide range of consumer needs, from food and beverages to clothing, sporting goods, automotive goods, electronics, housewares, drugs and jewelry. According to the Stranahan court, Fred Meyer's invitation to the public was sufficiently broad to create a constitutionally protected right for the activist to gather signatures at the center, and therefore, her arrest by Fred Meyer was unjustified.

It is important to note that the majority of decisions granting public access to privately owned shopping centers involve large malls or super-regional centers. A large shopping center offering one-stop shopping is more likely to be considered a public forum than a smaller shopping center containing relatively few stores with a limited scope.

Stranahan, however, is a peculiar case in that the Fred Meyer shopping center at issue is relatively small in size by today's shopping mall standards. The Fred Meyer shopping center is only 110,000 square feet and conducts 18,000 transactions per week. As noted by the dissenting judge, the Fred Meyer center had no public benches, no gardens, no theaters, no meeting rooms, no public art displays, no fountains and no bulletin boards. Fred Meyer did not invite the public to come to the center for noncommercial purposes or to do anything other than to purchase consumer goods.

Whether Stranahan announces a new standard or whether it will be followed as precedent remains to be seen.

Since the law in this area is constantly changing, judicial decisions and state legislation should be reviewed periodically in each jurisdiction where an owner operates a shopping center. Where state law requires public access to a shopping center for free speech activities, the shopping center owner may not be able to prevent the center from being deemed a public forum. The shopping center owner can, however, establish adequate time, manner and place restrictions in order to regulate noncommercial activities and minimize interference with the center's commercial functions.

For example, a shopping center owner may require groups to file an application describing the nature and scope of the proposed activities before it grants access for noncommercial activities. The shopping center owner may also limit public access to certain hours of the day, certain days of the month or to a limited number of representatives from each group and may exclude access during certain seasons such as the Christmas holiday shopping season.

Regulations should address whether any electrical or mechanical equipment such as lights, loudspeakers or musical instruments will be permitted. The regulations also should address signage limitations. The shopping center owner may request the applicant provide a deposit, bond or proof of insurance naming the center owner as additional insured. At the very least the center owner may wish to seek an indemnity from the applicant.

It is imperative that time, manner and place restrictions be reasonably relative to the nature and character of the center and not be based on the content of the message being delivered. These regulations should be reviewed periodically by legal counsel.

Grant Gardner is a partner in our New York office and practices in the real estate, corporate, and tax practice groups. He can be reached at 212-513-3558 or by e-mail at ggardner@hklaw.com