By Jonathan Walters

State courts aren’t generally known for rulings that reverberate nationally — except perhaps when they have to do with something hugely controversial, as happened in Vermont recently around same-sex marriage. But a less visible decision by the New Jersey Supreme Court last week could arguably have a powerful ripple effect, because it addresses a fundamental legal question that has been percolating nationally for years: To what extent are shopping malls private property versus public gathering places, and how much control can malls exert over the exercise of free speech within their cavernous corridors?

The state case pitted James Mohn, a member of the Draft [Ralph] Nader for President Committee, against Hartz Mountain Industries, owners of the Mall at Mill Creek in Secaucus. Mohn had gone to the mall to leaflet for Nader’s Green Party candidacy. He was informed by mall officials that he could only leaflet one day a year and then only after providing proof of insurance, which the Greens contended would have cost the party nearly $700.

The Greens took Hartz Mountain to court, arguing that requiring such an expenditure for a small, cash-strapped political party amounted to a prohibition on free speech. A lower court found for the mall, which led to the unanimous decision in favor of the Greens by the state Supreme Court. “Leafletting in heavily visited shopping areas has a very high value in our system of political discourse,” wrote Associate Justice Daniel O’Hern. “Putting too high a price on the exercise of freedom may destroy it.”

Malls have always occupied ambiguous legal territory when it comes to their status as public gathering places. Having usurped Main Street — along with the weather — many malls want not only to control the climate within their corridors, but everything else that goes on there, including the give and take of political discourse.

In reaching its unanimous decision, the New Jersey Supreme Court has sent malls a very clear message: They can’t have it both ways. If they want the hustle and bustle of commerce, then they are also going to have to accept some of the civic responsibility that goes along with that.

Jonathan Walters is a Governing staff correspondent.

Agree? Disagree? Want to expand on a point? E-mail us at mailbox@governing.com, and we'll post your comments here. Please include your name, location, government or business title or job description, and a daytime phone number (for verification purposes).

Recently in View:

Hate and HMOs: the reality of rationed health care (posted June 15, 2000)

Baby Dumping and Uncertainty: a flawed solution (posted June 12, 2000)

Schooling the Beast: the ultimate public management challenge (posted June 4, 2000)

Tinkering with Uniformity: overdoing school dress codes (posted May 28, 2000)

School Takeovers and High Expectations: a mixed record (posted May 24, 2000)

Complete index of previous columns

Copyright © 2000, Congressional Quarterly, Inc. Reproduction in any form without the written permission of the publisher is prohibited. Governing, City & State and Governing.com are trademarks of Congressional Quarterly, Inc.