Shad Alliance v. Smith Haven Mall

• Citation: 106 A.D.2d 189,484 N.Y.S.2d 849
• Parties: SHAD ALLIANCE, et al., Respondents, v. SMITH HAVEN MALL, Appellant.
• Decision Date: 04 February 1985
• Court: New York Supreme Court Appellate Division

Page 849

484 N.Y.S.2d 849

106 A.D.2d 189

SHAD ALLIANCE, et al., Respondents, v. SMITH HAVEN MALL, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 4, 1985.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Robert S. Smith, Matthew E. Fishbein and Audrey S. Feinberg, New York City, of counsel), for appellant.

Steven R. Shapiro and Christopher A. Hansen, New York City, for respondents.

Stroock & Stroock & Lavan, New York City (Edward R. Korman and Naomi Siegel, New York City, of counsel), for The New York Government Affairs Committee of the Intern. Council of Shopping Centers, amicus curiae.

Before GIBBONS, J.P., and BROWN, NIEHOFF, RUBIN and EIBER, JJ.

BROWN, Justice.

The issue to be decided on this appeal is whether the rights of free speech and petition under our State Constitution (N.Y. Const., art. I, §§ 8, 9) protect those who wish to distribute leaflets dealing with matters of public interest and concern at a large, privately-owned suburban shopping mall. We conclude that the shopping mall in question--the Smith Haven Mall in Suffolk County--by virtue of its size, location and mode of operation, has undertaken the character and attributes of a downtown business district or town center such that the rights of free expression under our State Constitution require that the Mall be enjoined from prohibiting the distribution of leaflets on its premises, subject only to the adoption of reasonable regulations as to the time, place and manner in which such activities may be carried out so as to minimize any interference with the Mall's commercial functions.

SHAD Alliance (Sound-Hudson Against Atomic Development) is a coalition of organizations from New York City, Long Island, Westchester and the Mid-Hudson area opposed to the use of nuclear power. It seeks to prevent the operation of existing nuclear power plants and the completion of new ones through educational means and nonviolent action. Paumanok People's Organization has been formed, in its own words, in opposition to "the use of nuclear power for the generation of electricity and the manufacture and use of nuclear weaponry". It favors the use of "safe, renewable and decentralized services of energy" and seeks to promote its goals through "non-violent direct action". On two occasions during the summer of 1980, representatives of the two groups, including on one occasion both of the individual plaintiffs, stood under the portico at the main entrance to the Smith Haven Mall and began distributing leaflets which expressed their opposition to the use of nuclear power and encouraged the public to protest against the operation of the Shoreham Nuclear Power Station. On each occasion, representatives of the Mall ordered the plaintiffs to desist in their activities, based upon a policy which prohibits the distribution of leaflets without the permission of the Mall's management. When such permission was thereafter sought, it was denied.

Special Term, after finding that the plaintiffs' activities did not in any manner disturb the Mall's operation, concluded, inter alia, that the "Mall * * * can be considered to perform the functional equivalent of a town center and the free flow and dissemination of all ideas would be severely curtailed if plaintiffs were denied access to it" (SHAD Alliance v. Smith Haven Mall, 118 Misc.2d 841, 848, 462 N.Y.S.2d 344). It held that under our State Constitution plaintiffs were required to be allowed access to the Mall to communicate their ideas. We agree.

The Smith Haven Mall is a large, privately owned and operated shopping center occupying approximately 97 acres, and containing parking for 7,000 cars. It is owned by the Prudential Insurance Company of America and is operated by a privately-owned management company. The Mall building itself contains about 1.4 million square feet and is occupied by three large "anchor" department stores (Abraham and Straus, Macy's and Sears) and approximately 125 other retail establishments, including several restaurants and banks, a movie theatre, a dental clinic and a social services agency. The Mall is protected by both the Suffolk County Police Department and a private security force. Its 1977 annual gross sales of $180 million comprised nearly 5% of all retail sales in Suffolk County, making it the county's largest retail center. According to a 1979 public relations survey, the Mall draws customers from over 60 surrounding areas; nearly one half of its customers do not regularly shop at any other shopping center and an equal number visit the Mall at least once each week.

The Mall is typical of any large suburban shopping center, and is designed to encourage the public to linger and congregate. At the center of the Mall, where its four pedestrian walkways converge, there is a shallow sunken amphitheatre designed to seat a large number of people. The amphitheatre is surrounded by a number of take-out food establishments and seating areas where shoppers and other visitors are encouraged to sit and relax. There are similar facilities at the ends of the corridors leading to the three anchor department stores.

The Mall also serves as the focal point for a number of community activities and gatherings, hosting over 80 promotional events each year, including exhibitions, charity auctions, recruitment efforts by both local universities and the armed forces, and free health-related services. In addition, the Mall permits the use of its facilities for annual voter registration drives and promotional events by local towns and provides space for the mobile office of the local member of Congress. As a matter of policy, however, the management of the Mall has prohibited any type of pamphleting or use of its facilities for campaigning or political gatherings.

Our analysis of the issues begins with an acknowledgment of the proposition that leafleting at any privately-owned shopping center--no matter of what size or character--is not a protected activity under the First Amendment of the Federal Constitution. In Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, the United States Supreme Court expressly held that a privately-owned shopping center's policy of prohibiting the distribution of handbills on its premises was not violative of the rights of free speech and assembly under the United States Constitution. Noting that the First and Fourteenth Amendments safeguard the rights of free speech and assembly against the infringement by the government--and not against the actions of private individuals--the court stated that property does not "lose its private character merely because the public is generally invited to use it for designated purposes" (Lloyd Corp. v. Tanner, supra, p. 569, 92 S.Ct. at p. 2229). Specifically rejected by the majority in Lloyd was the contention that where a shopping center takes on the characteristics of a downtown business district, it is considered to have been dedicated for public use and, as a consequence, all members of the public, whether invited as customers or not, have the same right of free speech as they would have in the streets of a city or town ( Lloyd Corp. v. Tanner, supra, pp. 568-569, 92 S.Ct. at pp. 2228-2229).

In reaching its decision in Lloyd, the court distinguished its earlier holdings in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 and Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, in which limited rights of access to privately-held property for purposes of the exercise of First Amendment rights were recognized. Marsh involved the right of the Jehovah's Witnesses to distribute religious literature on the streets of a privately-owned company town. There the court found that although privately owned, the business district of the town was the equivalent of that of any other municipality and, since private interests were substituting for and performing the customary governmental functions, First Amendment freedoms could not be denied when exercised on the town's sidewalks and streets (Marsh v. Alabama, supra, 326 U.S. at pp. 502-503, 66 S.Ct. at p. 277). The majority in Lloyd distinguished the facts before it from the situation in Marsh in which the private enterprise had assumed "all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State" (Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131, supra ). The nature and function of the shopping center in Lloyd was clearly not nearly so broad and far reaching.

In the other case distinguished by the Lloyd court, Food Employees Union v. Logan Valley Plaza (supra ), the court held that members of a labor union could picket outside a market located within a privately-owned shopping center. The holding, however, was limited, according to the Lloyd court, both by the fact that the purpose of the picketing was directly related to the use to which the shopping center property was being put, and further by the fact that because the target store was located in the center of a large private parcel there were no other reasonable opportunities for the pickets to convey their message. InLloyd, on the other hand, the message sought to be conveyed--opposition to the draft and the war in Vietnam--had no direct relation to the business of the shopping center (Lloyd Corp. v. Tanner, 407 U.S. 551, 564, 92 S.Ct. 2219, 2226, 33 L.Ed.2d 131, supra ). Nor did the restriction of access to the shopping center deprive the leafleters of all reasonable opportunity to convey their message to the public since the center, which was located in downtown Portland, Oregon, was surrounded by public streets and sidewalks ( Lloyd Corp. v. Tanner, supra, pp. 566-567, 92 S.Ct. at pp. 2227-2228).

A vigorous dissent was filed in Lloyd by Justice MARSHALL, joined by three other members of the court, in which it was argued that...