Everyone thinks that they have a right to free speech everywhere, at any time. A case from the Third Department last week illustrates that is simply not the case - Kings Mall, LLC v Wenk, 2007 NY Slip Op 05811. In that case, the Court had to address whether protesters of the Iraq War could protest inside a shopping mall. The mall in question, Kings Mall, in Ulster County consisted of a single large building with an enclosed common area, with two anchor stores at each end and 30 retail stores between them. One of mall's 32 tenants was the U.S. Government, which operated an armed forces recruitment center for all four branches of the armed forces. Displayed at every entrance to the mall were printed notices advising that the mall "is reserved only for the use of the owners and employees of business tenants and their patrons" and entering the property "for any other purpose is prohibited."
Beginning in May 2005, protesters began entering the mall to protest against the war in Iraq. Over time the protests became increasingly aggressive and disorderly. Thus, the mall commenced an action to permanently enjoin the protesters from entering the mall. The mall was granted a preliminary injunction, which allowed the protesters to protest only on the outside sidewalks of the mall during a two-hour time period on Saturday afternoons.
On appeal to the Third Department, the court rejected any claims that the protester's free speech rights were violated under either the Federal or State Constitutions. The Court noted that both the State and Federal constitutional guarantees of free speech protect individuals only against governmental or state action. The Court stated that the fact that U.S. Government rented one of 32 commercial spaces in plaintiff's mall was insufficient to establish state action. In addition, the Court stated:
The record reflects that [the Mall's] actions arise not out of any obligation to the government or in response to any governmental request but, rather, out of its contractual obligation to prevent disruptions damaging to its tenants' business operations at the mall. There is absolutely no evidence on this record that the government is entwined with [the Mall's] conduct or has participated therein.
The Court also found that the Mall would suffer irreparable injury if the protests continued because it submitted affidavits from several of its tenants indicating that while the protests were ongoing their business had noticeably decreased. Finally, the Court noted that the injury to the protesters in having to continue their protests outside the mall was far outweighed by the potential financial loss and the loss of goodwill that will be suffered by the Mall absent injunctive relief.
Maybe when the protesters get tired of protesting outside they can head inside for a Jamba Juice, a Cinnabon, and a new pair of Nikes at the Footlocker?
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