Legal Corner
by Michael Garner

During political seasons, shopping centers often see an influx of picketers, pamphleteers and others wishing or attempting to express their views on the shopping center grounds. This raises somewhat difficult issues in balancing free speech with free enterprise. In fact, it is such a controversial area of law that the United States Supreme Court and the Washington Supreme Court have reached different results.

The First Amendment of the U.S. Constitution prevents the government from restricting free speech, especially in a public forum. Washington’s Constitution has a similar section, although it is worded somewhat differently. Neither constitutional right applies in a private forum. The question, then, is how to characterize a shopping center.

Although shopping centers are privately owned, they are open to wide cross-sections of the public. So has a shopping center become "public" because it provides such broad access?

The U.S. Supreme Court said "no" and confirmed that shopping centers retain their private nature in most situations. PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). There is no First Amendment right to picket or collect initiative signatures in a mall. However, the high court left the door open for individual states to interpret their own constitutions differently and to provide more protection to speech.

The Washington Supreme Court has veered back and forth on the issue over the years. It has settled on a rule that is a bit broader than the federal rule, although not by much. Under Washington’s constitution, there is no constitutional right to picket in shopping centers. But there is a constitutional right to solicit initiative signatures in the mall of large shopping centers — although not in small centers such as a grocery store. The Court decided that a large shopping mall is more like a "town center," where you would expect to encounter free speech. A smaller store is not. Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wn.2d 623 (1999).

This means that shopping centers in Washington cannot stop people from collecting initiative signatures in the mall area or have them removed as trespassers. You can require picketers or protesters to leave. You also can prevent signature gatherers from entering particular shops, instead keeping them in the "mall" area or even a specially designated section of the mall.

This is an area of law to watch, because the courts have changed their mind a few times on the subject and they could do so again. Also, each state interprets its constitution somewhat differently, so the result could change if you operate a shopping center in Oregon or other states.