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Public-access case may set precedent

By Jon Springer

While Minnesota recently joined the list of states to uphold shopping center owners' rights to treat their malls as private property, a federal case in Albuquerque, N.M., is taking that old argument in a new direction.

A lawsuit alleges that Cottonwood Mall interferes with free-speech rights.

In a federal lawsuit filed in December, three malls in New Mexico are having their right to regulate activities within their malls challenged on the basis that they rent space to government agencies for public services such as voting booths and motor vehicle department offices.

The suit poses unique and potentially precedent-setting questions of law, said Edward J. Sack, general counsel of ICSC. "It's a novel case," said Sack. "That argument has never been advanced in such terms."

The suit was brought by the SouthWest Organizing Project (SWOP) and the American Civil Liberties Union of New Mexico, against the Coronado Center, Winrock Center and Cottonwood Mall in greater Albuquerque. The suit says all three illegally interfere with free speech through their policies, and asks the judge to declare that the plaintiffs have a constitutional right to peacefully distribute leaflets and picket in common areas and parking lots.

The case arose from incidents in which SWOP protestors attempted picketing and handing out leaflets at the malls to protest mall policies regarding dress codes. Also, in the case of Coronado Center, it stems from a ruling that prohibits groups of more than three teen-agers in the mall at one time. SWOP presses social justice issues in New Mexico.

The case would be an exception to the landmark 1972 U.S. Supreme Court decision in Lloyd v. Tanner, which held that shopping centers may limit speech activities on their premises.

Cottonwood Mall, owned by Simon Property Group, Indianapolis, filed a motion in March to dismiss the complaint, and Winrock Center, owned by Prudential Life Insurance Co., Newark, N.J., filed a concurring brief, said Norman S. Thayer, of Sutin, Thayer & Brown, the Albuquerque firm representing Winrock. Coronado Center, owned by Heitman Retail Properties, Chicago, had not at press time filed a motion, but "any decision that involves the motion would affect all three centers," Thayer said.

ICSC in the meantime was preparing an amicus brief to support the mall and Lloyd v. Tanner.

Thayer said the malls are motioning to dismiss the case simply because the presence of government agencies -- in some cases, on donated space -- makes little difference to the private nature of the properties.

"The real issue is whether this rather small government presence really makes a difference. Cottonwood took it head-on and said, 'It isn't enough,' " said Thayer. "Even if you consider all these facts [in the complaint] true, it still isn't enough."

At press time, Thayer said he expected a judge would rule in April on the motion to dismiss, which would likely be followed by a reply brief from the plaintiffs. Actual discussion on the case may not take place until this month, if at all.

In many state cases, the presence of government-leased space has been deemed "irrelevant," by courts, Sack said. Most recently, Mall of America in Bloomington, Minn., withstood a unique challenge in which the plaintiffs alleged that since the mall was built with some public funding for infrastructure, it should be considered a public place.

But in March, the Minnesota Supreme Court upheld the rights of the mall to deny access, aligning Minnesota with the majority of states that have ruled on the side of private property rights since the U.S. Supreme Court's landmark Pruneyard case in 1980. Although the Supreme Court, in Lloyd v. Tanner, had ruled that malls are private property, Pruneyard said, in effect, that states can grant greater free-speech rights than those in the U.S. Constitution.

"Neither the invitation to the public to shop and be entertained at Mall of America nor the public financing used to develop the property are state action for the purposes of free speech," the Minnesota court ruled. The suit was brought against the mall three years ago after four animal-rights protesters were charged with trespassing.