138 N.J. 326 (1994) 650 A.2d 757

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.

The Supreme Court of New Jersey.

Argued March 14, 1994. Decided December 20, 1994.

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

Joseph Aviv, a member of the Michigan bar, argued the cause 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 argued the cause for respondents Cherry Hill Center, Inc., d/b/a Cherry Hill Mall and Woodbridge *332 Center, Inc., d/b/a Woodbridge Center (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Anne M. Patterson, on the brief).

Ronald E. Wiss argued the cause 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).

Brian J. McMahon argued the cause 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 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 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 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, ¶¶ 6, 18. It follows the course we set in our decision in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980).

*333 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 *334 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.

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).

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 *335 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.

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.

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. *336 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 was aimed at commuter stops around the State.^[3] The November 10 targets were shopping centers, the ten very large regional and community shopping centers whose owners are the defendants herein.

On November 9, plaintiff — aware of the shopping centers' probable refusal — sought judicial relief ordering the centers to permit *337 the leafletting. That effort was unsuccessful. The trial court ruled that plaintiff had failed to prove refusal; appellate review was also unsuccessful.

On November 10 plaintiff's members and representatives went to the malls and requested permission to leaflet. Four of the defendant malls granted plaintiff permission to leaflet on their premises, and plaintiff did in fact leaflet at two of those malls. Monmouth Mall initially denied plaintiff's request, but later issued plaintiff a permit to use its community booth for two days in January, and even provided professional signs and displays for the group. Plaintiff used the booth on those days. The conditions imposed by mall management, however, made it difficult for plaintiff to reach the public. Among other restrictions, plaintiff was not allowed to approach passersby to offer them literature. The Mall at Mill Creek, Cherry Hill Mall, and Woodbridge Center granted plaintiff permission to use their community booths, but required that plaintiff obtain or show proof of liability insurance in the amounts of $1,000,000 for bodily injury and $50,000 to $1,000,000 for property damage. Plaintiff was unable to obtain the necessary insurance, and requested that the malls waive the requirement. Woodbridge Center waived the insurance requirements, allowing plaintiff to distribute leaflets from a table, while The Mall at Mill Creek and Cherry Hill Mall refused.

Although the six remaining malls refused permission, one of those malls — Hamilton — ultimately allowed plaintiff to leaflet. While it initially denied permission, asking plaintiff to leave the premises, it eventually allowed plaintiff to leaflet undisturbed for approximately three to four hours.

As a consequence of defendants' refusal to allow plaintiff access to the malls, and the restrictions imposed on such access where allowed, few of the thousands of people at those malls on November 10 learned of plaintiff's views.

Plaintiff again sought emergent judicial relief ordering the centers to permit its members to leaflet in support of their view that those forces already deployed refrain from any military *338 action. Relief was again denied, both at the trial and appellate level. Plenary trial of the substantive issue of plaintiff's right to leaflet on defendants' premises was thereafter held, but by then the military intervention had occurred and the engagement was over.^[4]

Each of the ten defendant shopping centers is very large. For instance, one defendant mall, Woodbridge Center, serves an area with a population of 1,400,000. On an average day in 1990, approximately 28,750 people shopped there. November 10, 1990, however, was not an average day. Not only was the tenth a Saturday, a day that is generally very busy for shopping malls, but it was also part of Veterans' Day weekend. Thus, presumably many more people visited malls on that day than on an average day. Indeed, plaintiff's witnesses testified that they sought to leaflet on that day because of the large expected turnout of shoppers during the holiday weekend.

Nine of the defendant shopping centers are "regional centers." A regional shopping center is defined in the industry as one that

provides shopping goods, general merchandise, apparel, furniture and home furnishings in full depth and variety. It is built around the full-line department store, with a minimum GLA [gross leasable area^[5]] of 100,000 square feet, as the major drawing power. For even greater comparative shopping, two, three or more department stores may be included. In theory a regional center has a GLA of 400,000 square feet, and can range from 300,000 to more than 1,000,000 square feet.

[National Research Bureau, Shopping Center Directory 1994, Eastern Volume (1993).]

*339 The regional centers involved in this case have from 93 to 244 tenants, including not only department stores, but also restaurants and other retail and business establishments, such as art galleries, automotive centers and gas stations, banks, brokerage houses and finance companies, leisure and entertainment centers, optical centers, travel agencies, hair salons, shoe repair shops, theaters, ticket agents, insurance agencies, doctors' offices, and a United States postal booth during the holiday seasons. One housed a United States Post Office substation until approximately 1990. Each mall is surrounded by parking facilities that hold from 3,075 to 9,000 vehicles. The acreage of the regional centers ranges from 31.44 to 238 acres.

The tenth defendant is a "community" shopping center. A community center is smaller than a regional center and lacks the variety of merchandise available at a regional mall. The industry defines a community center as one that includes

a wide[] range of facilities for the sale of soft lines (apparel) and hardlines (hardware, appliances, etc.).... It is built around a junior department store, variety store or discount department store although it may have a strong specialty store. The typical size of a community center is 150,000 square feet. In practice a community center can range from 100,000 to 300,000 square feet.

[Ibid.]

The only community center involved in this case, the Mall at Mill Creek, covers twenty-seven acres. It has a discount department store, a supermarket, sixty-two smaller retail stores, and a seven-restaurant food court.

All of the defendant shopping centers are enclosed malls — enclosures covering not only the tenants of all kinds but also substantial common areas linking them and providing space for people to congregate. In those malls where plaintiff was refused permission to leaflet, the refusal was absolute; plaintiff was denied access to the enclosed areas as well as the parking lots and sidewalks outside of the enclosures.

Although each mall asserts that it does not resemble a downtown business district, like those districts, each of these malls employs or uses part-time (or in some cases, on-duty) municipal *340 police officers, usually in uniform and armed. Quakerbridge Mall houses a municipal police substation. Police officers, almost always off-duty, patrol the inside of Cherry Hill Mall, Woodbridge Center, Livingston Mall, and the Mall at Short Hills. The interiors of Rockaway Townsquare Mall and Monmouth Mall are patrolled by on-duty municipal police officers. Some of the malls (such as Riverside and Monmouth) hire off-duty police officers for traffic control when necessary. Most of the malls' parking lots are patrolled by municipal police officers.

Each of the defendants permits and encourages a variety of non-shopping activities on its premises.^[6] Six of the malls provide access to community groups. Riverside Square Mall has a meeting room, with an occupancy of 150 persons, that is available to the public. Monmouth Mall rents a civic auditorium to various organizations. Monmouth Mall also has a community booth from which various groups are allowed to espouse their causes, distributing leaflets and literature to passersby. Hamilton, the Mall at Mill Creek, Cherry Hill Mall, and Woodbridge Center provide similar community booths.

Some of the non-shopping activities permitted by defendants involved speech, politics, and community issues. Some of these activities, moreover, have been permitted by the very defendants who denied plaintiff permission to leaflet. For example, Rockaway Townsquare Mall held a Crime Prevention Day, has hosted community weekends, and allowed one of plaintiff's constituent members, Morris County SANE/FREEZE, to participate. Livingston Mall also has sponsored community weekends where civic groups were allowed to position themselves in the common area of the mall, distribute literature and speak about issues relevant to their causes, and Quakerbridge has hosted a similar community day.

*341 In addition to sponsoring community weekends or days, these malls have sponsored other events that included political speech or concerned issues of civic importance. Livingston Mall allowed a voter registration drive to be conducted by the League of Women Voters, and sponsored a Child ID Day with the Livingston Police. Rockaway Townsquare Mall sponsored a voter registration drive in conjunction with the Morris County Republican party, and a United Way Day of Caring where sixty-seven agencies distributed information on diverse topics, such as substance abuse, homelessness, hunger, literacy, and youth counselling. Local officials and dignitaries participated in the "kick-off" for that event. Quakerbridge Mall hosted an exhibition of local municipal groups with the Mall's Merchants Association and Lawrence Township.

The remaining malls have permitted similar events. For example, Cherry Hill Mall allowed Senator Bill Bradley's office to conduct a voter registration drive in the fall of 1990. Woodbridge Center allowed Senator Bradley to walk through its mall greeting and shaking hands with its patrons in the summer of 1990 when he was running for re-election. Both Cherry Hill Mall and Woodbridge Center allowed the Marines to sponsor "Toys for Tots" drives. Woodbridge Center's press release stressed that the focus of the event would be on children whose mothers or fathers were serving in the Persian Gulf. The Mall at Mill Creek allowed the New Jersey Prosecutor's Victim and Witness Association to present information for crime victims, allowed a Bradley for United States Senate Voter Registration Drive to be held, and allowed military recruitment by the United States Naval Sea Cadets and the United States Army.

Monmouth Mall sponsored a Spring Community Fair, held a Berlin Wall Exhibit, allowed free "Video Postcards From Home" to the Persian Gulf troops to be taped on its premises, and has a senior citizen activity network office. Riverside Square Mall allowed Senator Bradley's office to conduct a non-partisan voter registration drive. Riverside Square also sponsored a United States Marine Corps "Toys for Tots" drive, a Bergen County *342 Read-In Festival, which involved the participation of local officials, and an Earth Day Celebration with local and national environmental organizations. Hamilton Mall hosted a Coastal Cops Celebration Holiday. This program, which is coordinated by the mall and local businesses, gives children ages six to twelve the opportunity to participate in a clean-up effort of the area's beaches.

Furthermore, based on statements at oral argument (and on our own experience) we deem it likely that defendants permit candidates, accompanied as always by a few aides, to seek support by walking through the mall, approaching shoppers, offering a handshake, and saying a few words (or more) to each. We would be surprised if those aides did not have leaflets available.

Despite the myriad of permitted uses, including many involving the distribution of issue-oriented literature — leaflets — and accompanying speech, despite the explicit permission given to plaintiff to leaflet at four of them, and despite the display of tenants' posters at most of them, posters that were visible from the common areas and expressed support for our armed forces in the Persian Gulf, all of the centers claim to prohibit issue-oriented speech and leafletting.

Defendants presented evidence that issue-oriented free speech, and especially controversial free speech, conflicted with their commercial purpose: that purpose is to get as many shoppers as possible on the premises and to provide an atmosphere that would encourage buying. Leafletting, speaking, and the assumed related consequences of such actions, were described as in conflict with shopping, particularly impulse buying, a major goal of such centers. If designed to prove probable financial loss, the evidence was unpersuasive. At malls of this size, carefully regulated leafletting, limited in duration and frequency, and permitted only in selected areas, seems unlikely to have the slightest impact on actual revenues, even if some shoppers dislike it. At most the impact would be negligible. Despite plaintiff's assertion that California's shopping centers, where leafletting has been permitted since 1979, have suffered no adverse financial consequences *343 whatsoever, defendants suggested nothing concrete to the contrary.^[7] And the same is true of Bergen Mall, apparently a regional shopping center, where issue-oriented leafletting has been permitted since 1984 by virtue of a trial court injunction (and where plaintiff leafletted against our Persian Gulf military involvement).

At the plenary trial, plaintiff sought a permanent injunction restraining defendants from preventing or interfering with plaintiff's free speech activities, subject to reasonable conditions. It claimed this substantive right to free speech under New Jersey's Constitution as well as at common law. No claim of right was made under the Federal Constitution. Plaintiff also challenged specific regulations imposed by some of the malls including: 1) content-based regulations prohibiting offensive speech, 2) requirements that the group seeking access to the mall obtain insurance, 3) regulations prohibiting people engaging in expressive activity from approaching mall visitors and 4) arbitrary limitations on mall access.

The trial court entered judgment in favor of defendants, denying all relief, on the ground that defendants' property was dedicated solely to commercial uses inconsistent with political speech; that the invitation to the general public was limited to such use; and that, therefore, under our ruling in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), no State constitutional right of free speech on defendants' premises existed. New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 266 N.J. Super. 195, 628 A.2d 1094 (Ch.Div. 1991). The trial court ruled, in effect, that defendants retained the right to exclude those *344 not invited to its premises to the same extent as any other private property owner. Given that judgment, the trial court found it unnecessary to rule on defendants' contention that the relief sought by plaintiff, if granted, would constitute a taking of their property without just compensation, would deprive them of their property without due process of law, and would abridge their freedom of speech by forcing them to provide a forum for the speech of others, all in violation of the Federal and State Constitutions. The Appellate Division affirmed, relying substantially on the trial court's findings and opinion. 266 N.J. Super. 159, 628 A.2d 1075 (1993).

We granted both plaintiff's petition for certification and cross-petitions filed by two of the defendants. 134 N.J. 564, 636 A.2d 522 (1993). We reverse, and declare that plaintiff has a State constitutional right to leaflet at defendants' shopping centers, subject to reasonable conditions, and that such right does not infringe on any constitutional right asserted by defendants.

II

Before reaching our discussion of the law, we must first examine the background against which this question is raised. We know its most important outline. Regional and community shopping centers significantly compete with and have in fact significantly displaced downtown business districts as the gathering point of citizens, both here in New Jersey and across America.

Statistical evidence tells the story of the growth of shopping malls. In 1950, privately-owned shopping centers of any size numbered fewer than 100 across the country. Steven J. Eagle, Shopping Center Control: The Developer Besieged, 51 J.Urb.L. 585, 586 (1974). By 1967, 105 of the larger regional and super-regional malls existed. This number increased to 199 in 1972 and to 333 in 1978. Thomas Muller, Regional Malls and Central City Retail Sales: An Overview, in Shopping Centers: U.S.A. 180, 189 (George Sternlieb & James W. Hughes eds., 1981). By 1992, the number expanded to at least 1,835. Shopping Center World/NRB *345 1992 Shopping Center Census, Shopping Center World, Mar. 1993, at 38.^[8] Thus, from 1972 to 1992 the number of regional and super-regional malls in the nation increased by roughly 800%. In New Jersey, the number of malls greater than 400,000 square feet, or, roughly, the number of regional and super-regional malls, has more than doubled over the last twenty years, increasing from 30 in 1975 to 63 in 1992. Shopping Center Census ..., Shopping Center World, Jan. 1977, at 21; Shopping Center World/NRB 1992 Shopping Center Census, supra, at 46.

The share of retail sales attributable to regional and super-regional malls has demonstrated a similar pattern. Nationally, regional malls' market share of "shopper goods sales" was 13% in 1967 and 31% in 1979. Muller, supra, at 187. In 1991 retail sales in "shopping centers," a category that includes not only regional malls but other types of urban and suburban retail centers, "accounted for over 56% of total retail sales in the United States, excluding sales by automotive dealers and gasoline service stations." International Council of Shopping Centers, The Scope of the Shopping Center Industry in the United States, 1992-1993, at 1 (1992). In New Jersey in 1991, retail sales in shopping centers constituted 44% of non-automotive retail sales. Id. at 34.

Thus, malls are where the people can be found today. Indeed, 70% of the national adult population shop at regional malls and do so an average of 3.9 times a month, about once a week. Id. at 1. Therefore, based on adult population data from the 1990 census,^[9] more than four million people on average shop at our regional *346 shopping centers every week, assuming New Jersey follows this national pattern.

The converse story, the decline of downtown business districts, is not so easily documented by statistics. But for the purposes of this case, we do not need statistics. This Court takes judicial notice of the fact that in every major city of this state, over the past twenty years, there has been not only a decline, but in many cases a disastrous decline. This Court further takes judicial notice of the fact that this decline has been accompanied and caused by the combination of the move of residents from the city to the suburbs and the construction of shopping centers in those suburbs. See Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331, 1336 (1986) ("Both statistics and common experience show that business districts, particularly in small and medium sized towns, have suffered a marked decline. At the same time, shopping malls, replete with creature comforts, have boomed.").

That some downtown business districts have survived, and indeed thrive, is also fact, demonstrated on the record before us. The overriding fact, however, is that the movement from cities to the suburbs has transformed New Jersey, as it has many states. The economic lifeblood once found downtown has moved to suburban shopping centers, which have substantially displaced the downtown business districts as the centers of commercial and social activity.

The defendants in this case cannot rebut this observation. Indeed, the shopping center industry frequently boasts of the achievement. The industry often refers to large malls as "`the new downtowns.'" Note, Private Abridgment of Speech and the State Constitutions, 90 Yale L.J. 165, 168 n. 19 (1980) (quoting Shopping Center World, Feb. 1972, at 52). It correctly asserts that "the shopping center is an integral part of the economic and social fabric of America." International Council of Shopping Centers, The Scope of the Shopping Center Industry in the United States, 1992-1993, ix (1992).

*347 Industry experts agree. One recent study asserted "[t]he suburban victory in the regional retail war was epitomized by the enclosed regional mall.... [Regional malls] serve as the new `Main Streets' of the region — the dominant form of general merchandise retailing." James W. Hughes & George Sternlieb, Rutgers Regional Report Volume III: Retailing and Regional Malls 71 (1991). Beyond that, one expert maintains that shopping centers have "evolved beyond the strictly retail stage to become a public square where people gather[]; it is often the only large contained place in a suburb and it provides a place for exhibitions that no other space can offer." Specialty Malls Return to the Public Square Image, Shopping Center World, Nov. 1985, at 104.

Most legal commentators also have endorsed the view that shopping centers are the functional equivalent of yesterday's downtown business district. E.g., James M. McCauley, Comment, Transforming the Privately Owned Shopping Center into a Public Forum: PruneYard Shopping Center v. Robins, 15 U.Rich.L.Rev. 699, 721 (1981) ("[P]rivately-owned shopping centers are supplanting those traditional public business districts where free speech once flourished."); Note, Private Abridgment of Speech and the State Constitutions, supra, 90 Yale L.J. at 168 ("[T]he privately held shopping center now serves as the public trading area for much of metropolitan America.").

Statisticians and commentators, however, are not needed: a walk through downtown and a drive through the suburbs tells the whole story. And those of us who have lived through this transformation know it as an indisputable fact of life, and that fact does not escape the notice of this Court.

III

We shall briefly summarize the lengthy history of the law of free speech that underlies this case. The relevant historical starting point is Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). In Marsh, the United States Supreme Court held that the First Amendment's guarantee of free speech was *348 violated when the private owners of a company town prevented distribution of literature in its downtown business district. Finding that the company town had all the attributes of a municipality, the Court held that the private owner's action was "state action" for constitutional free speech purposes. In a democracy, the Court recognized, citizens "must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored." Id. at 508, 66 S.Ct. at 280, 90 L.Ed. at 270. The paramount right of the citizens to be informed overrode the rights of the property owners in the constitutional balance. Id. at 509, 66 S.Ct. at 280, 90 L.Ed. at 270.

The question whether citizens may exercise a right of free speech at privately-owned shopping centers without permission of the owners has been litigated extensively. The first time the question came before the Supreme Court, the Court upheld the right of free speech at shopping centers. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 325, 88 S.Ct. 1601, 1612, 20 L.Ed.2d 603, 616 (1968). Clearly relying on Marsh, the majority in Logan Valley ruled that shopping centers are the functional equivalent of downtown business districts and that the private owners could therefore not interfere with the exercise of the right of free speech. For First Amendment purposes that interference constituted "state action." The Court implied, but did not hold, that an unrestricted free speech right existed. Logan Valley was thereafter "limited" by Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), which held that war protesters had no right of free speech at shopping centers. The Court distinguished Logan Valley, confining it to the situation in which the speech was related to shopping center activities — a labor dispute involving one of the center's tenants — and in which no alternative was available for the expression of views, id. at 563, 92 S.Ct. at 2226, 33 L.Ed.2d at 139-40 *349 — such as the public sidewalks that surrounded the center in Lloyd.^[10]

The Court in Hudgens v. NLRB, 424 U.S. 507, 517-18, 96 S.Ct. 1029, 1035-36, 47 L.Ed.2d 196, 205-06 (1976), reviewing both Logan Valley and Lloyd, concluded not only that the reasoning of the latter amounted to a total rejection of the former, but that even the limited right of free speech (namely, that relating to shopping center activities) approved in Lloyd did not exist. That view was reaffirmed in PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741, 751-52 (1980). Those cases, Hudgens and PruneYard, essentially held that the First Amendment right found in Marsh was limited to a privately-owned factory town, an entity that performed substantially all of the functions of government. Its actions were therefore akin to "state action," thereby triggering First Amendment protection. Not so the actions of shopping centers, whose functional equivalence to a town was limited to the downtown business district.

It is now clear that the Federal Constitution affords no general right to free speech in privately-owned shopping centers, and most State courts facing the issue have ruled the same way when State constitutional rights have been asserted. Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz. 371, 767 P.2d 719 (Ct.App. 1989); Cologne v. Westfarms Assocs., 192 Conn. 48, 469 A.2d 1201 (1984); Citizens for Ethical Gov't v. Gwinnett Place Assoc., 260 Ga. 245, 392 S.E.2d 8 (1990); Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337 (1985); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 498 N.Y.S.2d 99, 488 N.E.2d 1211 (1985); State v. Felmet, 302 N.C. 173, 273 S.E.2d *350 708 (1981); Eastwood Mall v. Slanco, 68 Ohio St.3d 221, 626 N.E.2d 59 (1994); Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co.,