Restrictions in Shopping Centers

The courts have made it clear that shopping centers can and should adopt written "reasonable" rules and regulations for free speech activity. Most large shopping malls have adopted a set of written regulations, which are available at the center's offices. The standard for what is a "reasonable" shopping center rule is the same as the standard for the government regulating speech in a public forum—the rule must be content-neutral and narrowly tailored and leave open alternative avenues of communication.

The court decisions applying this standard have not been consistent, so the state of the law is unclear at this time. Many of the large shopping centers adopted rules that were complicated and burdensome to advocacy groups, but many of these rules were upheld in state court decisions. Such rules included:

• Requiring a permit in advance to give the center prior notice of the activity
• Limiting free speech activity to designated free speech areas (usually 2 or 3)
• Imposing strict limits on the number of participants (usually 2 or 3)
• Requiring advance approval of signs and literature
• Prohibiting all free speech activity during certain busy periods (e.g. Thanksgiving to Christmas)
• Prohibiting direct solicitation of any monetary donations

A more recent federal court decision, relying on the California Supreme Court's ruling in the Fashion Valley case, rejected the reasoning of these state court decisions, thus calling into question many of these same rules. The court specifically rejected the following rules as either impermissible content discrimination or as not narrowly tailored.

• Prohibition on speech activities that identify or single out the mall or a mall tenant by name (e.g. content-based)
• Prohibition on the carrying or wearing of signs, including picket signs
• Prohibition on any activity on the exterior walkways
• Ban on activities during holiday periods

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