NOTE: This reprint does not contain any footnotes. For footnotes, refer to original document (NJ Lawyer Magazine, June, 1997). PRIVATE PROPERTY AND PUBLIC SPEECH The public forum in this country is shrinking -- legally and factually -- as a consequence of two unrelated developments: the narrowing of First Amendment doctrine and the privatization of formerly public space. But there is still some hope for free speech devotees thanks to the forward-looking New Jersey judiciary, which is providing the nation a beacon for protection of freedom of expression in the 21st century. Where Have All the Public Forums Gone? The legal assault on the public forum began in earnest in the early Seventies as the Warren Court gave way to the Burger Court. The high water mark had come in 1968 with the U.S. Supreme Court;s decision in the Logan Valley shopping mall case. In an opinion by Justice Thurgood Marshall, the Court recognized that suburban shopping malls in many parts of the country had replaced the old urban town squares and main street business districts: [T]he roadways provided for vehicular movement within the mall and the sidewalks leading from building to building are functional equivalents of the streets and sidewalks of a normal municipal business district. The shopping center premises are open to the public to the same extent that as the commercial center of a normal town. So far as can be determined, the main distinction in practice between use by the public of the Logan Valley Mall and of any other business district ... would be that those members of the general public who sought to use the mall premises in a manner contrary to the wishes of the [owners] could be prevented from so doing. Logan Valley built on earlier doctrine, most particularly Marsh v. Alabama, the company town case. In an opinion by Justice Hugo Black, the high court had thrown out the trespass conviction of a Jehovah's Witness arrested for proselytizing on the main street of Chickasaw, Alabama. The Court held that the First Amendment protected the defendant's right of free expression even though the streets and sidewalks of Chickasaw were wholly owned by the steel mill where most of the residents were employed. Since Chickasaw performed the same public functions as a governmental body, it was subject to the same constitutional constraints. Logan Valley was specifically overruled, and the continued vitality of the "public function" principle relied upon in Marsh put in question by a Burger Court ruling in 1976. Since that time, the First Amendment has offered no protection to individuals and groups desirous of disseminating their messages at the nation's ubiquitous shopping malls, which have greatly proliferated in the quarter century since Logan Valley. Moreover, the changed doctrine foreclosed extending the public function concept to new areas in the age of privatization. The Privatization of Public Space When the Supreme Court decided Logan Valley in 1968, the Court reported there were between ten and eleven thousand shopping centers in the United States and Canada accounting for 37 per cent of the total retail sales in the two countries. By 1990, the United States alone had 36,500 centers accounting for more than half of all retail sales. The inevitable consequence has been the increasing evaporation of the old public downtown business districts and town squares (where activists were constitutionally free to pass out literature and set up soap boxes) and their replacement by privately owned suburban enclaves (where owners and managers attempted to insulate patrons from public discourse and controversy). This movement to privatize formerly public space has continued just as dramatically in the realm of living arrangements. By 1992, nearly one out of every eight Americans (32 million) lived in a private community, ranging in size from 3-unit condominiums to the 19,000-unit planned community of Reston, Virginia. In the largest metropolitan areas, at least 50 per cent of new home sales are in community associations. The consequence of this privatization movement for grass roots social and political movements is obvious. Beginning around World War II, the United States Supreme Court issued a series of rulings dealing with leafletting in public areas -- on public thoroughfares and parks and door-to-door on public streets -- specifically designed to protect what Justice Hugo Black referred to as "the poorly financed causes of little people." Historically, such social movements, without mass media advertising budgets, have relied upon such types of grass roots organizing techniques. The disappearance of public space leaves such groups less and less able to communicate with their fellow citizens. Focus on State Constitutions The narrowing of the U.S. Supreme Court's "public function" jurisprudence has seemingly left private owners -- commercial and residential -- free to prohibit expression on their properties, insofar as the First Amendment is concerned. This has shifted the struggle for free speech in such arenas to state courts and state constitutions. Shortly after Hudgens, the California Supreme Court ruled that its own Constitution did reach certain private conduct and essentially reinstated Logan Valley as the law in California. A unanimous opinion of the U.S. Supreme Court upheld California's right to interpret the free speech provisions of its own constitution more expansively than the First Amendment, and rejected the shopping center's argument that the state decision constituted a taking of property without compensation. The Pruneyard decision shifted the legal struggle to protect free speech in privatized public fora to the state courts. New Jersey Takes the Lead While California showed the way, it is indisputable that the New Jersey courts are now pioneering the constitutional map in ways which promise to keep open the channels of grass roots communication in the new millennium. Even prior to Pruneyard, the New Jersey Supreme Court had recognized that the state law protected rights of communication and expression against infringement by some non-governmental entities in a position to exercise dominion over others. State v. Shack involved a trespass prosecution of a Legal Services worker who entered a private landowner's property in an effort to provide assistance to migrant farmworkers housed thereon. In dismissing the prosecution, the State Supreme Court ruled: Property rights serve human values. They are recognized to that end, and limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law. Although the opinion was not rested on the New Jersey Constitution, the Supreme Court relied upon Shack nine years later in ruling that the Article 1  6 and 18, the free speech provisions of the New Jersey Constitution, protected the distribution of political flyers on the private Princeton University campus. Rejecting the U.S. Supreme Court's sharp public-vs.-private-property dichotomy articulated in the 1974 shopping mall case, the unanimous State v Schmid opinion stated: Since it is our State Constitution which we are here expounding, it is also fitting that we look to our own strong traditions which prize the exercise of individual rights and stress the societal obligations that are concomitant to a public enjoyment of private property. Finally, in 1994, in its own shopping mall case, the New Jersey Court, in a lengthy opinion by Chief Justice Wilentz, articulated a full-blown theory of public-forum protection under the State Constitution. In so doing, the Court reached back into the federal constitutional jurisprudence of a half century before and adopted as its own the public function doctrine of Marsh v. Alabama: We also find as support for our conclusions an enduring principle recognized in Marsh, a principle that remains pertinent for our purposes even though it has not been accepted in this context as a matter of federal constitutional doctrine. The principle of that case ... is that the constitutional right of free speech cannot be determined by title to property alone. Thus, where private ownership of property that is the functional counterpart of the downtown business district has effectively monopolized significant opportunities for free speech, the owners cannot eradicate those opportunities by prohibiting it. The Chief Justice then added a comment of special significance for other social trends which impact upon the availability of public forums in an era of growing privatization: [I]f the people have left for the shopping centers, our constitutional right includes the right to go there too, to follow them, and to talk to them. We do not believe that those who adopted a constitutional provision granting a right of free speech wanted it to diminish in importance as society changed, to be dependent on the unrelated accidents of economic transformation, or to be silenced because of a new way of doing business. To emphasize the point, the Wilentz opinion, referring to New Jersey's constitutional protections for freedom of expression, observed that "constitutional provisions of this magnitude should be interpreted in light of a changed society." The Court thus made it clear that the Coalition decision was not merely a narrow ruling applicable to shopping centers, but posited an entire jurisprudence of free speech in the age of privatization. Looking Forward The most analogous area to which this principle might be applied would appear to be private residential communities. If free speech was not to be silenced by "a new way of doing business," (at suburban shopping malls) why should it be silenced by a new way of living (in private communities)? If under earlier free speech doctrine, proselytizers had the right to walk down public streets and knock on every door to disseminate their political and social messages, what kind of rights do they retain when those formerly public streets are privatized? When 50 per cent of one's neighbors have relocated to such private communities, are grass roots groups foreclosed from the most effective means of communication formerly available to promote the "poorly financed causes of little people"? Should such grass roots organizers have the right to follow their neighbors into their new communities just as they can now follow them into the shopping malls? The first major test of this issue has just been litigated in a case out of Guttenberg involving a high-rise residential community, the Galaxy Towers. The Galaxy, home to one-quarter of the registered voters in the municipality, was a self-contained community with on-site parking and a mini mall accessible from the buildings' lobbies. The condominium association took an active part in local politics, supporting candidates in town council and school board elections and carrying out an active get-out-the-vote campaign for endorsed slates. Opposition candidates sought permission to distribute election materials in the building in the same manner that the association did -- i.e. slipping flyers under apartment doors during the week before Election Day. Such requests were routinely denied. Suit was filed in the Hudson County Chancery Division seeking access to the building on behalf of a competing slate in the 1994 school election. After an initial dismissal, the Appellate Division heard the appeal after the Supreme Court had decided the Coalition case, and remanded for reconsideration in light of the Wilentz opinion. The Appellate Division opinion favorably cited a pre-Schmid opinion by Judge Bachman, sitting in Middlesex County Court, voiding a trespass conviction of petition-gatherers who had canvassed the private Rossmore retirement community to collect signatures on petitions for a change in the form of local government. Judge Bachman had warned against allowing such private communities to become "political isolation booth[s]." On remand of the Galaxy case, Chancery Judge Martin I. Greenberg held for the plaintiffs after a plenary hearing and issued an order requiring the condominium association to allow the plaintiffs to distribute election materials in the building "in the same manner and to the same extent" that it did. Judge Greenberg also "dr[ew] guidance" from Judge Bachman's 25-year-old Kolcz opinion after noting that under the Supreme Court's Colalition ruling, the decision rested "ultimately upon a balancing of the right of free expression and the right to private property." Finding that the plaintiffs had "no meaningful substitute for 'door-to-door' communication," Judge Greenberg held: A level playing field requires equal access to this condominium because it has become in essence a political "company town" ... in which political access controlled by the association is the only "game in town." Judge Greenberg's ruling was unanimously affirmed by the Appellate Division in December and, at this writing, a petition for review is pending before the State Supreme Court. It should be pointed out that the Galaxy case is limited to what is in essence a right of reply. The association still controls access to its property. If it decides to cease handing out election materials to its members, plaintiffs lose their right to respond. But clearly, together with the Coalition opinion of Chief Justice Wilentz, the Galaxy case raises profound issues concerning communication of ideas in an increasingly privatized society. With the U.S. Supreme Court operating with blinders on when it comes to viewing public forum doctrine, other state courts now have an alternative model for defining the real public forum in a new millenium where the title to formerly public space resides more and more in private hands.