New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp.

• Citation: 138 N.J. 326,650 A.2d 757
• Parties: , 52 A.L.R.5th 777 NEW JERSEY COALITION AGAINST WAR IN THE MIDDLE EAST, Sylvia Ackelsberg, and David Cline, Plaintiffs-Appellants and Cross-Respondents, v. J.M.B. REALTY CORPORATION, d/b/a Riverside Square, Prutaub Joint Venture, d/b/a The Mall at Short Hills, Defendants-Respondents and Cross-Appellants, and Cherry Hill Center, Inc., d/b/a Cherry Hill Mall, Kravco, Inc., d/b/a Hamilton Mall, Equity Properties & Development Co., Inc., d/b/a Monmouth Mall, Kravco, Inc., d/b/a Quakerbridge Mall, Rockaway Center Associates, d/b/a Rockaway Townsquare, Woodbridge Center, Inc., d/b/a Woodbridge Center, Livingston Mall Venture, d/b/a Livingston Mall, Hartz Mountain Industries, Inc., d/b/a The Mall at Mill Creek, Defendants-Respondents.
• Decision Date: 20 December 1994
• Court: United States State Supreme Court (New Jersey)

Page 326

138 N.J. 326

650 A.2d 757, 52 A.L.R.5th 777

NEW JERSEY COALITION AGAINST WAR IN THE MIDDLE EAST, Sylvia

Ackelsberg, and David Cline, Plaintiffs-Appellants and Cross-Respondents, v. J.M.B. REALTY CORPORATION, d/b/a Riverside Square, Prutaub

Joint Venture, d/b/a The Mall at Short Hills,

Defendants-Respondents and Cross-Appellants,

and

Cherry Hill Center, Inc., d/b/a Cherry Hill Mall, Kravco,

Inc., d/b/a Hamilton Mall, Equity Properties & Development

Co., Inc., d/b/a Monmouth Mall, Kravco, Inc., d/b/a

Quakerbridge Mall, Rockaway Center Associates, d/b/a

Rockaway Townsquare, Woodbridge Center, Inc., d/b/a

Woodbridge Center, Livingston Mall Venture, d/b/a Livingston

Mall, Hartz Mountain Industries, Inc., d/b/a The Mall at

Mill Creek, Defendants-Respondents.

Supreme Court of New Jersey.

Argued March 14, 1994.

Decided Dec. 20, 1994.

Frank Askin and William J. Volonte, Reitman Parsonnet, Newark, on behalf of the American Civil Liberties Union Foundation, for appellants and cross-respondents (Mr. Askin, Howard Moskowitz, and Mr. Volonte, attorneys).

Joseph Aviv, Bloomfield Hills, MI, a member of the Michigan bar, for respondents and cross-appellants (Cuyler, Burk & Matthews, attorneys; Mr. Aviv, Jo Ann Burk, Peter Petrou, and Bruce L. Segal, a member of the Michigan bar, on the brief).

Nicholas deB. Katzenbach, Morristown, for respondents Cherry Hill Center, Inc., d/b/a Cherry Hill Mall and Woodbridge Ronald E. Wiss, Roseland, for respondents Rockaway Center Associates, d/b/a Rockaway Townsquare and Livingston Mall Venture, d/b/a Livingston Mall (Wolff & Samson, attorneys; Mr. Wiss and Sandra Nachshen, on the brief).

Center, Inc., d/b/a Woodbridge Center (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Anne M. Patterson, on the brief).

Brian J. McMahon, Newark, for respondents Kravco, Inc., d/b/a Hamilton Mall, Kravco, Inc., d/b/a Quakerbridge Mall (Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys).

Mark A. Steinberg, Asbury Park, submitted a letter in lieu of brief on behalf of respondent Equity Properties and Development Co., Inc., d/b/a Monmouth Mall.

Curtis L. Michael, Secaucus, submitted a letter brief on behalf of respondent Hartz Mountain Industries, Inc., d/b/a The Mall at Mill Creek (Horowitz, Rubino & Associates, attorneys).

Bernard A. Kuttner, Millburn, submitted a brief on behalf of amici curiae, United Farm Workers of America, AFL-CIO, and New Jersey Consumer Coalition.

The opinion of the Court was delivered by

WILENTZ, C.J.

The question in this case is whether the defendant regional and community shopping centers must permit leafletting on societal issues. We hold that they must, subject to reasonable conditions set by them. Our ruling is limited to leafletting at such centers, and it applies nowhere else. ¹ It is based on our citizens' right of free speech embodied in our State Constitution. N.J. Const. art. I, pp 6, 18. It follows the course we set in our decision in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980).

In Schmid we ruled that our State Constitution conferred on our citizens an affirmative right of free speech that was protected not only from governmental restraint--the extent of First Amendment protection--but from the restraint of private property owners as well. We noted that those state constitutional protections are "available against unreasonably restrictive or oppressive conduct on the part of private entities that have otherwise assumed a constitutional obligation not to abridge the individual exercise of such freedoms because of the public use of their property." Id. at 560, 423 A.2d 615. And we set forth the standard to determine what public use will give rise to that constitutional obligation. The standard takes into account the normal use of the property, the extent and nature of the public's invitation to use it, and the purpose of the expressional activity in relation to both its private and public use. This "multi-faceted" standard determines whether private property owners "may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly." Id. at 563, 423 A.2d 615. That is to say, they determine whether, taken together, the normal uses of the property, the extent of the public's invitation, and the purpose of free speech in relation to the property's use result in a suitability for free speech on the property that on balance, is sufficiently compelling to warrant limiting the private property owner's right to exclude it; a suitability so compelling as to be constitutionally required.

Applying Schmid, we find the existence of the constitutional obligation to allow free speech at these regional and community shopping centers clear. Although the ultimate purpose of these shopping centers is commercial, their normal use is all-embracing, almost without limit, projecting a community image, serving as their own communities, encompassing practically all aspects of a downtown business district, including expressive uses and community events. We know of no private property that more closely resembles public property. The public's invitation to use the property--the second factor of the standard--is correspondingly broad, its all-inclusive scope suggested by the very few restrictions As for the third factor of the standard--the relationship between the purposes of the expressional activity and the use of the property--the free speech sought to be exercised, plaintiff's leafletting, is wholly consonant with the use of these properties. Conversely, the right sought is no more discordant with defendants' uses of their property than is the leafletting that has been exercised for centuries within downtown business districts discordant with their use. Furthermore, it is just as consonant with the centers' use as other uses permitted there. Indeed, four of these centers actually permitted plaintiff's leafletting (although it took place in only two of those).

on the invitation that are claimed, but not advertised, by defendants. For the ordinary citizen it is not just an invitation to shop, but to do whatever one would do downtown, including doing very little of anything.

We therefore find the existence of a constitutional obligation to permit the leafletting plaintiff seeks at these regional and community shopping centers; we find that the balance of factors clearly predominates in favor of that obligation; its denial in this case is unreasonably restrictive and oppressive of free speech: were it extended to all regional and community shopping centers, it would block a channel of free speech that could reach hundreds of thousands of people, carrying societal messages that are at its very core. The true dimensions of that denial of this constitutional obligation are apparent only when it is understood that the former channel to these people through the downtown business districts has been severely diminished, and that this channel is its practical substitute.

We hold that Schmid requires that the free speech sought by the plaintiff--the non-commercial leafletting and its normal accompanying speech (without megaphone, soapbox, speeches, or demonstrations)--be permitted by defendants subject to such reasonable rules and regulations as may be imposed by them. This free speech can be, and we have no doubt will be, carefully controlled by these centers. There will be no pursuit or harassment We recognize the concerns of the defendants, including their concern that they will be hurt. Those concerns bear on the extent and exercise of the constitutional right and we have addressed them in this opinion. We recognize the depth and legitimacy of those concerns even apart from their constitutional relevance. Defendants have expended enormous efforts and funds in bringing about the success of these centers. We hope they recognize the legitimacy of the constitutional concern that in the process of creating new downtown business districts, they will have seriously diminished the value of free speech if it can be shut off at their centers. Their commercial success has been striking but with that success goes a constitutional responsibility.

of shoppers. Given this limited free speech right--leafletting, given the centers' broad power to regulate it--and given experience elsewhere, we are confident that it is consonant with the commercial purposes of the centers and the varied purposes of their shoppers and non-shoppers.

Without doubt, despite the fact that the speech permitted--leafletting--is the least obtrusive and the easiest to regulate, and despite the centers' broad power to regulate, some people will not like it, any more perhaps than they liked free speech at the downtown business districts. Dislike for free speech, however, has never been the determinant of its protection or its benefit. We live with it, we permit it, as we have for more than two hundred years. It is free speech, it is constitutionally protected; it is part of this State, and so are these centers.

I

In the summer and fall of 1990 our government and our country were debating what action, if any, should be taken in response to Iraq's invasion of Kuwait. The issue eclipsed all others. The primary competing policies were military intervention and economic sanctions. On November 8, President Bush announced a major increase in the number of troops stationed in Saudi Arabia and the Persian Gulf in order to provide "an adequate offensive military option." President's News Conference, 26 Weekly Comp.Pres.Doc.

                1789, 1792 (Nov. 8, 1990).  Plaintiff--a coalition of numerous groups 2--opposed military intervention and sought public support for its views.  For that purpose, plaintiff decided to conduct a massive leafletting campaign on November 9 and November 10, urging the public to contact Congress to persuade Senators and Representatives to vote against military intervention.  The November 9 effort

...