Shad Alliance v. Smith Haven Mall

• Decision Date: 14 March 1983
• Citation: 462 N.Y.S.2d 344,118 Misc.2d 841
• Parties: SHAD ALLIANCE, Paumanok People's Organization, Hank Glaser and Carol Cina, Plaintiffs, v. SMITH HAVEN MALL, the name under which The Prudential Insurance Co. of America does business in New York, Defendant.
• Court: New York Supreme Court

Page 344

462 N.Y.S.2d 344

118 Misc.2d 841

SHAD ALLIANCE, Paumanok People's Organization, Hank Glaser and Carol Cina, Plaintiffs, v. SMITH HAVEN MALL, the name under which The Prudential Insurance Co. of America does business in New York, Defendant.

Supreme Court, Special Term Suffolk County, Part I.

March 14, 1983.

Christopher A. Hansen, Steven R. Shapiro, New York Civil Liberties Union, New York City, for plaintiffs.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant.

MEMORANDUM

WILLIAM L. UNDERWOOD, Jr., Justice.

This case is of novel impression and it involves the right of free speech versus the right of privacy. Specifically, can plaintiffs utilize the free speech language of the New York Constitution to compel defendant, the owner of a shopping center, to permit them to distribute leaflets on its private property. The issues presented by this case are of current interest because the leaflets sought to be distributed concern the use of nuclear power.

Defendant moves for summary judgment and plaintiffs also move for the same relief. Both sides admit that the motions present "a pure question of law".

FACTS

The facts are not in dispute and are stated at length as follows.

Plaintiff, SHAD Alliance (Sound-Hudson Against Atomic Development--SHAD), is a coalition of groups from Long Island, New York City, Westchester and the Mid-Hudson Region of New York State. The amended complaint states that "SHAD opposes nuclear power. Members of SHAD seek to stop existing nuclear power plants and prevent the completion of new ones" through education and non-violent action. Plaintiff, Paumanok People's Organization (Paumanok), an undefined entity, is, in the language of the amended complaint, "opposed to the use of nuclear power for the generation of electricity and the manufacture and use of nuclear weaponry". Paumanok "favors the use of safe, renewable and decentralized services of energy. To obtain these goals, Paumanok uses non-violent direct action and the education of all people to the dangers of nuclear power and weaponry."

On two occasions, July 5, 1980, and August 16, 1980, representatives of SHAD and Paumanok went to the Smith Haven Mall (Mall). On each occasion, three people, including plaintiff Hank Glaser, (plaintiff Carol Cina was present only on August 16, 1980) stood under the portico at the main entrance to the Mall and distributed leaflets which stated that they opposed the use of nuclear power. The leaflets also advised Suffolk County residents of future protest activities against the Shoreham Nuclear Power Station. On each occasion, plaintiffs were prevented from distributing the leaflets by a representative of the Mall pursuant to the Mall policy which prohibits the distribution of leaflets without the permission of the Mall manager. Plaintiffs sought that permission and were refused. Plaintiffs did not block the entrances or exits of the Mall or disrupt the Mall's operation in any way on either occasion.

In order for the reader to be informed of the place where plaintiffs sought to distribute their leaflets and to relate the private property to various shopping centers mentioned in Court cases, a detailed description of the Smith Haven Mall is required.

The Mall is a shopping center located in Suffolk County, New York. The Prudential Insurance Company of America (Prudential), a mutual insurance company, is the owner in fee of the Mall. The Mall property occupies approximately 97 acres, of which 85 acres are devoted to parking for 7,000 automobiles. The Mall building itself occupies about 1.4 million square feet and encloses three department stores together with approximately 125 other stores, restaurants, entertainment and service businesses which are connected by four common, climate-controlled pedestrian walkways laid out in a cross-pattern along the north-south and east-west axes. These commercial establishments pay rent for the space at the Mall. The Mall is operated for Prudential by a privately owned management company. The Mall is private property and operated for the commercial benefit of Prudential and its tenants.

The Mall provides a complete array of retail sales including three large "anchor" stores (Macy's, Sears, Abraham & Straus). The Mall also contains several restaurants (one offering live music), hairstylists, a phone center store, a travel agency, and several banks. Entertainment facilities include a movie theatre, a health spa, and a video arcade and personal services include a dental clinic, an employment service, and a social services agency offering counselling, housing assistance and youth services. It is protected by a private police force and by the county police.

The Mall is the largest retail center in Suffolk County. In 1977, it had $180 million in annual gross sales, which is almost 5% of all retail sales in Suffolk County and it draws customers from over 60 surrounding areas. Almost half of the Mall's customers visit the Mall at least once a week and almost half shop exclusively at the Mall.

The Mall, like most suburban shopping malls, is designed to encourage people from the community to linger, browse, and congregate in the public areas. The central rotunda of the Mall is its focal point and it is designed for seating a large crowd. It provides numerous areas to sit around the shallow, sunken amphitheatre and it also provides take-out food nearby to encourage patrons to sit and relax. It is probably the center of the heaviest pedestrian flow in Suffolk County. There are also three secondary intersections at the ends of the three corridors leading to the Mall's "anchor" stores which are designed to provide similar opportunities to sit, linger, relax, and socialize.

The Mall is designed to and does provide numerous opportunities for public gatherings and events. There are over 80 promotional events each year, some involving over 70 different exhibits. The Mall plays host to the Boy Scouts and Girl Scouts, runs charity auctions, permits recruitment by local universities and the United States Army, and provides free health services such as blood pressure and hearing tests. The Mall also encourages political or quasi-political events such as voter registration by The League of Women Voters, promotional activities by local towns, and provides space for the local congressman's mobile office.

Finally, although defendant does not allow any pamphleting, political rallies or functions at the Mall (indeed they point out that they even removed James Buckley from the Mall when he was campaigning for United States Senator in this State), they do permit the Mall to be used for public purposes and exhibits as previously mentioned.

LAW

I

The United States Supreme Court has held that the First Amendment does not permit the distribution of leaflets at a privately owned shopping center.

In Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196, the Supreme Court held that the Federal Constitution does not guarantee the right to distribute handbills by labor union members on the property of a privately owned shopping center. The Court stated that property does not "lose its private character merely because the public is generally invited to use it for designated purposes" and that "the essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center" (Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131).

In the earlier decision of Lloyd Corp. v. Tanner (supra), the Supreme Court, in a case remarkably similar to the one at bar, discussed the issues now facing this Court as follows:

"The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safegua the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only..."

"Respondents contend ... that the property of a large shopping center is 'open to the public', serves the same purposes as a 'business district' of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that 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."

"The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use."

"We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights..." (Id., at 567, 92 S.Ct. at 2228, emphasis in original)

In view of the Supreme Court decisions in Hudgens and Lloyd, that a privately owned and operated shopping center open to the public does not lose its private character and the First Amendment does not permit the distribution of handbills, can the New York Constitution afford a greater right of freedom of expression?

II

In PruneYard Shopping Center v. Robins, 447 U.S. 74 at 81, 100 S.Ct. 2035 at 2040, 64 L.Ed.2d 741, the Supreme Court clearly stated "our reasoning in Lloyd, however, does not ex proprio vigore (by its own force--author), limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution."

Indeed, the Court of...