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Green Party of New Jersey v. Hartz Mountain Industries, Inc.

164 N.J. 127, 752 A.2d 315 (N.J. 2000)

SHOPPING CENTERS; LEAFLETTING—Malls may not condition access for political and social leafletters on their maintaining liability insurance.

According to the New Jersey Supreme Court, owners of shopping malls must permit leafletting and related political and societal speech subject to reasonable time, place, and manner restrictions. Here, a political party “applied for permission to set up an information table, hand out leaflets, and obtain signatures on behalf of a political party and its candidate at a local shopping mall. The mall’s regulations: 1) limited an applicant’s activities to one day per year between January 1 and October 31 unless otherwise approved by the mall management upon written request; 2) required applicants to provide a certificate of insurance in the amount of $1,000,000; and 3) required applicants to sign a hold-harmless agreement indemnifying the mall for any claims or losses, including costs and counsel fees incurred defending the claims.” The political party obtained a quote for the insurance certificate and found it prohibitive. The Chancery Division felt that because these regulations affected freedom of speech, they should be narrowly tailored to promote the substantial business interests of the mall. Applying that standard, the lower court found all of the regulations to be invalid. The Appellate Division reversed, finding that under the “reasonable business judgment” standard, the mall had broad powers to regulate the right to leaflet. According to the Appellate Division, the three regulations at issue were upheld as reasonable means of protecting the mall’s property interests and precluding certain groups from dominating access to the mall. The New Jersey Supreme Court, however, held neither the “narrowly tailored” test utilized by the Chancery Division nor the “reasonable business judgment” test applied by the Appellate Division were proper standards for determining the reasonableness of time, place, and manner restrictions on free speech in shopping malls. Instead, a court must balance the rights of citizens to speak and assemble with the private property rights of mall owners “by considering the factors of the nature and importance of the affected right, the extent to which the regulation impedes that right, and the mall’s need for the restriction.” A mall’s broad power to impose such restrictions on activities and limit free speech at shopping malls does not include bull horns, megaphones, placards, pickets, parades, demonstrations, and similarly intrusive actions. With that in mind, the Supreme Court found that the “narrowly tailored” tests utilized by the Chancery Division, while appropriate for limiting a government’s intrusions into speech practiced in a public forum, is not applicable in evaluating regulations imposed pursuant to the ‘broad’ authority of a mall owner to protect private property.” Instead, the Court held that the proper test for evaluating the reasonableness of time, place and manner regulations by mall owners requires a balancing of expressional rights and private property interests. This test must recognize that the broad power of shopping malls to regulate the time, place and manner in which citizens may exercise their right of free speech permits owners to minimize interference with the mall’s commercial function without denying leafletters’ interest in expressive speech. The Court noted the “very high value” of leafletting in political discourse and demanded that a mall owner use objective factors, including any prior history of injury with a particular or related group, in determining its exposure. Here, “[s]ince the mall is already faced with the risk of claims from its invitation to thousands of people per year to shop, the Court finds that the primary question to be answered is ‘what additional risk to the mall owners is created by the occasional presence of signature gatherers?’” On the record before the Supreme Court, the mall’s $1,000,000 insurance requirement was found to lack objective proof of reasonableness and was therefore held to be invalid. The Court similarly found that the hold-harmless agreement requirement was linked to the insurance requirement and was similarly unsupported by objective data. The Court did not rule on the one day per year limitation because the parties were attempting to agree on a number of days leafletting would be permitted. It stated, however, that more than one day per year would be required to protect the expressive right involved.

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