Everyone knows how the big, enclosed shopping mall has taken over many of the functions that urban downtowns used to serve: It is not only a center for comparing and buying merchandise, but also a spot for teens to congregate and oldsters to get their daily exercise protected from winter snows and summer heat.
Increasingly, courts have had to struggle with the legal ramifications of this public function of what is, after all, private property. At one time, it looked as though the judges were going to use that public function to limit the rights of the property owners, but now the trend toward upholding full property rights of the mall owners seems to dominate judicial thinking.
In two state supreme courts earlier this winter, the majority of the justices outvoted vocal dissenters and upheld the right of mall owners to dictate just who can do what on their premises.
The issue in all these cases has been the applicability of constitutional guarantees of free assembly and speech to the shopping center. The old downtowns were built on city streets, so there was little disputing the fact that the owner of the streets and sidewalks -- the local government -- was barred by the Bill of Rights from banning the distribution of handbills or petition-signing campaigns. (The government can set some limits on such activities, such as allowing no more than one leafleteer per corner or banning bullhorns in the evening, but those limits must be reasonable and not prevent the demonstrators from reaching the shoppers.)
But the Bill of Rights is a curb on government activity; it places no limits on what private persons may do and does not bar property owners from telling activists that they want no leafleting or petition drives.
It is not as clear, however, that the guarantees of freedom in state constitutions are as limited. The New York state constitution, for instance, promises that "every person may freely speak, write, and publish his sentiments on all subjects." Does that mean that property owners cannot quell such speech?
Before the advent of shopping malls, no one thought that it did. The political orator could hold forth on the street corner, but you didn't have to let him use your front lawn. But if the best place to reach the public turned out to be privately owned centers, did democracy demand that those malls be opened to the same freedom of discussion that downtown had been? In 1981, the highest court in Washington state thought that it just might mean that.
The justices told lower courts to balance the interests of the public in getting access to views and opinions against the interests of the mall owners in keeping their property used solely for commerce, and to order the hallways open to demonstrators when that seemed a wise outcome.
But in 1984, the Connecticut Supreme Court said that shopping malls are no more public forums than are theaters, department stores or office buildings, and that there was no reason for the owners to approve any kind of activity they did not want. Now two more states have followed the Connecticut lead. The Michigan Supreme Court on Nov. 13, in Woodland v. Michigan Citizens, and the New York Court of Appeals on Dec. 19, in Shad Alliance v. Smith Haven, both decided that state guarantees of freedom of speech do not bind the owners of shopping centers.
Leafleteers and those seeking votes or petition signatures are going to have to go back to the city streets.
In other cases, courts, ruled that:
*A state legislature can turn a product into a service by saying it is so, and thereby hand the manufacturer protection from liability suits. The California Court of Appeals upheld a state law that mandates that selling blood products is a service, even though it found the plaintiffs' arguments "persuasive." The plaintiffs contended that the classification should not bar a damage suit by the heirs of a hemophiliac who died of acquired immune deficiency syndrome after being treated with a clotting product made from blood from an AIDS victim. The California statute making the sale of blood products a service was passed so the items would be exempt from the state sales tax. At the time, the legislators did not think about the fact that sellers of goods can be held strictly liable -- made to pay damages for harm caused by their goods, even if they have not been negligent -- while sellers of services are not held to such a strict standard. Nonetheless, the appellate judges ruled, the law's language is so clear that they have no grounds for finding that it says something other than what it says. (Hyland Therapeutics v. Superior Court, Dec. 10)
*There's nothing wrong with double regulation of worker safety on railroads. The U.S. Court of Appeals in Boston upheld the authority of the Occupational Safety & Health Administration to impose its rules on railroads, despite the fact that they also are regulated extensively by the Federal Railroad Administration. The fact that the FRA requires regular bearing inspections of rolling stock does not mean that OSHA cannot stipulate its own requirements on the kind of device used to lift the cars in order to perform the check, the judges decided. (Pratico v. Portland Terminal, Dec. 4)
*A tab on a jeans pocket may mean the parts are Levis but the same cannot be said of a tab on a shirt pocket. The U.S. Court of Appeals for the Federal Circuit rebuffed a bid by the maker of Levis to stop another manufacturer from using a pocket tab with its brands -- Wrangler and Maverick -- on its own line of shirts. The appellate judges endorsed the holdings of a district court judge that while the tab on pants pockets has become a distinctive identifying mark that other clothesmakers cannot copy, the shirt pocket tab is not so generally identified with Levis.
(Levi Strauss v. Blue Bell, Dec. 3)