Free Speech, Private Space and the Constitution

Abstract

Since the Supreme Court reinforced the state-action doctrine in the early Seventies and ruled that privately owned shopping malls could not qualify as a public forums under the First Amendment, efforts to protect free expression at privately-owned public gathering places have shifted to state courts. In 1980, the California Supreme Court became the first state high court to rule that under its own Constitution shopping malls were public forums. In 1995, the New Jersey Supreme Court was even more emphatic that under its Constitution human rights must prevail over property rights when the two came into conflict. The Court held that when suburban shopping malls replaced the old town squares as public gathering places, free speech had to move to the malls along with the populace.

As the drive toward privatization of formerly public space accelerates, courts must now consider the constitutional obligation of private communities. Again, New Jersey courts are taking the lead. Stepping off from the Supreme Court's shopping mall opinion, the Appellate Division has ruled that residential condominiums cannot be turned into "political isolation booths." In a case involving a high-rise condominium, the court held that once the condo association opens a forum for some speech, it must allow access to opposing speech.

Professor Askin traces the constitutional history of public forum doctrine under federal and state law -- including the specific incorporation by the New Jersey Supreme Court of the principle of Marsh v. Alabama (the company town case) under the state constitution. The article then explores the implications for the condominium explosion of the New Jersey Supreme Court's observation that: "We do not believe that those who adopted a constitutional provision granting 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."