rights become circumscribed by the statutory and
constitutional rights of those who use it.” 326 U.S. at
- The Court held that the company-owned town,
which possessed all of the characteristics of a
municipality, providing full access to the public to all of
its facilities including its shopping district, was subject to
the strictures of the First Amendment.
Floyd Corp., LTD. v. Tanner, 407 U.S. 551 (1972),
considered whether the protection of free expression in a
shopping center, that was unrelated to the center’s
operations, violates rights of private property protected
by the Fifth and Fourteenth Amendments. After
balancing the rights in question, the Court held that
under circumstances where there were adequate
alternative avenues of communication, it would be an
unwarranted infringement of property rights to require
the shopping center to yield to the exercise of First
Amendment rights. Finally, the Court held that there
had been no dedication of Floyd’s privately owned and
operated shopping center to public use as to entitle the
exercise therein of the asserted First Amendment rights.
See also Hudgens v. N.L.R.B., 424 U.S. 507 (1976),
overruling Food Employees v. Logan Valley Plaza, 391 U.S.
308 (1968); Pruneyard Shopping Center v. Robins, 447
U.S. 74 (1980).
In Green Party of New Jersey v. Hartz Mountain
Industries, Inc., 164 N.J. 127 (2000), a small political
party and politically active citizen sued shopping center,
challenging the constitutionality of its regulations
regarding distribution of leaflets by persons or groups.
Held: (1) The standard for determining the
constitutionality of regulations on the time, place, or
manner of speech in a shopping mall requires a balancing
of the rights of citizens to speak and assemble freely with
the private property rights of mall owners; and (2) the
regulations that a political party could not hand out
leaflets without providing a $1 million liability insurance
policy or signing a hold harmless agreement were
unconstitutional.
In New Jersey Coalition Against War in the Middle East
v. J.M.B. Realty Corp., 138 N.J. 326 (1994), cert. denied,
516 U.S. 812 (1995), a citizens group sued owners of
private shopping malls and sought permanent,
mandatory injunctive order to compel owners to grant
access to private property to allow leafletting. Held:
Regional shopping centers are required to permit
distribution of leaflets on societal issues, subject to
reasonable conditions.
In State v. Schmid, 84 N.J. 535 (1980), appeal
dismissed sub nom. Princeton University v. Schmid, 455
U.S. 100 (1982), defendant sought to distribute
political materials dealing with the United States Labor
Party on the main campus of Princeton University, a
private non-profit institution. Defendant was not a
student at Princeton, nor was the Labor Party a
university-affiliated or campus-backed organization.
Under the University regulations then in effect,
permission was a prerequisite for the on-campus
distribution of materials by off-campus organizations.
No permission was required for the same activity by a
university-affiliated organization or by Princeton
students. Defendant, who was aware of the University
policy, was arrested for trespass and charged as a
disorderly person under N.J.S.A. 2A:170-31 (Super-
ceded by N.J.S.A. 2C:18-3). The Court stated that, in
light of the fact that First Amendment principles as
applied to the owners of private property were still
evolving, it would not attempt to decide whether the
First Amendment applied to Princeton University.
Rather, the Court considered defendant’s assertion that
he was entitled to protection under the State
Constitution. The Court formulated a three prong test
to ascertain the parameters of the rights of speech and
assembly upon privately owned property and the extent
to which such property reasonably can be restricted to
accommodate those rights. The elements to be
considered are: “(1) the nature, purpose, and primary use
of such private property, generally, its ‘normal’ use, (2)
the extent and nature of the public’s invitation to use that
property, and (3) the purpose of the expressional activity
undertaken upon such property in relation to both the
private and public use of the property.” Additionally, in
weighing the reasonableness of an owner’s restrictions to
access to private property, weight may be given to
whether there exists “convenient and feasible alternate
means to individuals to engage in substantially the same
expressional activity.” The Court found that the
dissemination of political material by defendant was not
incompatible with Princeton University’s professed
educational goals or use of its property for educational
purposes, and there was no indication that defendant’s
activities disrupted University operations, or signifi-
cantly infringed on the rights of others, or caused any
interference or inconvenience with respect to the normal
use of the University property. Accordingly, the
judgment below was reversed.State v. Today Newspapers, 183 N.J. Super. 264 (Law
Div. 1982), held that a Franklin Lakes Municipal
Ordinance which precluded distribution of handbills