Can Maryland pass a law letting people picket, petition, or hand out flyers inside private shopping malls?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General about the "constitutional possibilities for legislation" that would protect free speech, petitioning, and assembly activity inside privately owned shopping centers, which were fast becoming the modern equivalent of a town's Main Street. The opinion reaffirmed a 1977 conclusion that the federal First Amendment itself does not require a private shopping center owner to allow picketing, leafleting, or petitioning on the property, but explained that the United States Supreme Court's 1980 decision in PruneYard Shopping Center v. Robins had confirmed that a state can go further than the First Amendment requires: a state may, through its own constitution, statutes, or common law, grant individuals a right to speak and petition on privately owned property open to the public, as long as that right does not unreasonably interfere with the property owner's own constitutional rights. Several other states, including Washington, Connecticut, and New Jersey, had already recognized similar rights under their own state constitutions. The opinion found it uncertain whether Maryland's Declaration of Rights, Article 40, already created such a right on its own, since Maryland courts historically read Article 40 as coextensive with the First Amendment rather than as an independent, broader guarantee. But the opinion concluded that the General Assembly, using its police power to promote the public welfare, could constitutionally enact legislation creating that right by statute, provided the law let shopping center owners impose reasonable time, place, and manner rules to protect their commercial operations.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the First Amendment give people the right to protest or collect signatures inside a Maryland shopping mall in 1983?
No. The opinion explained that federal First Amendment principles "offer little solace" to individuals wishing to picket, demonstrate, or petition on privately owned property like a shopping center, because the First Amendment restricts government action, not the decisions of a private property owner.

How could the state legislature give people that right anyway?
Through its own state law. The opinion pointed to the U.S. Supreme Court's PruneYard decision, which held that a state may use its own constitution, statutes, or common law to grant broader speech and petition rights on private property than the federal Constitution requires, as long as the exercise of those rights does not unreasonably interfere with the property owner's own constitutional rights.

Did shopping center owners lose all control over their property under this approach?
No. The opinion emphasized that in every state that had recognized these expanded rights, courts allowed the property owner to adopt reasonable, content-neutral rules governing the time, place, and manner of the expressive activity, so the owner could still protect normal business operations from significant disruption.

Did Maryland's own Declaration of Rights already guarantee this in 1983?
It was unclear. The opinion noted that Maryland's Article 40 had historically been read by the Court of Appeals as legally equivalent to the First Amendment rather than as an independent, more protective state guarantee, unlike the state constitutions of California, Washington, and New Jersey. Because of that history, the opinion did not conclude Article 40 alone created the right, and instead advised that the General Assembly could create it directly through legislation.

Background and statutory framework

The opinion built on a 1977 AG opinion (62 Opinions of the Attorney General 221) that had concluded the General Assembly could enact legislation requiring shopping center owners to permit expressive activity on their property, subject to reasonable regulation. It found that conclusion reinforced by the Supreme Court's intervening 1980 decision in PruneYard Shopping Center v. Robins, which upheld a California Supreme Court ruling that the California Constitution's speech and petition clauses (Cal. Const. art. 1, §§2(a) and 3) protected pamphleteering and signature-gathering in a shopping center's common areas, and held that this state-law expansion did not violate the shopping center owner's own property or speech rights under the Fifth, Fourteenth, or First Amendments. The Court in PruneYard weighed the character of the expressive activity and its economic impact on the owner's "reasonable investment-backed expectations," while preserving the owner's right to adopt time, place, and manner regulations minimizing interference with commercial operations (citing PruneYard, 447 U.S. at 83, and Loretto v. Teleprompter Manhattan CATV Corporation).

The opinion surveyed similar state-constitutional rulings in Washington (Alderwood Associates v. Washington Environmental Council), Connecticut (Cologne v. Westfarm Associates), New Jersey (State v. Schmid, involving a private university campus), and Pennsylvania (Commonwealth v. Tate, involving a private college), describing a common analytical framework: courts weighed whether the property was open to the public "by design, purpose, and dedication" so as to become the functional equivalent of a public forum, the nature of the expressive activity (with political speech about government especially favored), and the availability of reasonable regulation and alternative channels for the same speech. Turning to Maryland, the opinion reviewed Article 40 of the Maryland Declaration of Rights and the Court of Appeals' historical practice of construing it "in pari materia" with the First Amendment rather than as an independent, broader source of rights (citing Sigma Delta Chi v. Speaker of the Maryland House of Delegates and Police Commissioner v. Siegel Enterprises, Inc.), including a related narrow reading of the Article 13 petition clause (citing Richards Furniture v. Board). Because Maryland lacked the strong tradition of independent state constitutional interpretation found in California, Washington, or New Jersey, the opinion concluded it was uncertain whether Article 40 alone would be read to protect shopping center speech, but that the General Assembly's police power, which the Supreme Court had expressly recognized in PruneYard as a valid basis for such regulation, supported enacting the protection by statute instead.

Citations

Statutes:

• Md. Declaration of Rights, Article 40 (freedom of speech and press)
• Md. Declaration of Rights, Article 13 (right to petition the General Assembly)
• Cal. Const. art. 1, §2(a) and §3 (speech and petition clauses at issue in PruneYard)
• Wash. Const. art. 1, §5 and amend. 7 (speech clause and initiative power)
• Conn. Const. art. 1, §4 and §14 (speech and petition clauses)

Cases:

• Hudgens v. National Labor Relations Board, 424 U.S. 507, 513 (1976)
• PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980)
• Oregon v. Hass, 420 U.S. 714, 719 (1975)
• Cooper v. California, 386 U.S. 58, 62 (1967)
• Robins v. PruneYard Shopping Center, 592 P.2d 341, 347 (Cal. 1979)
• Armstrong v. United States, 364 U.S. 40, 48 (1960)
• Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)
• Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982)
• Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981)
• Cologne v. Westfarm Associates, 442 A.2d 471 (Conn. Super. 1982)
• Alderwood Associates v. Washington Environmental Council, 635 P.2d 108 (Wash. 1981)
• Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981)
• State v. Schmid, 423 A.2d 615 (N.J. 1980)
• Marsh v. Alabama, 326 U.S. 501 (1946)
• Police Commissioner v. Siegel Enterprises, Inc., 223 Md. 110, 128 (1960)
• Anderson v. Baker, 23 Md. 531, 588 (1865)
• Sigma Delta Chi v. Speaker of the Maryland House of Delegates, 270 Md. 1, 4 (1973)
• Freedman v. State, 233 Md. 498, 505 (1964)
• Richards Furniture v. Board, 233 Md. 249, 259 (1964)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law, Free Speech, Petition, and Assembly, Private Property, Trespass, Shopping Centers, State May Enact Legislation To Permit Expressive Activity on Shopping Center Premises, Subject to Owner's Right To Reasonably Regulate Such Activity.

January 21, 1983

The Honorable Ida G. Ruben
Maryland House of Delegates

You have requested our opinion on the "constitutional possibilities for legislation" designed to protect the exercise of free speech and other First Amendment activities in privately owned shopping centers.

In 62 Opinions of the Attorney General 221 (1977), this Office concluded that the General Assembly may properly enact legislation that requires shopping center owners to permit, subject to reasonable regulation, expressive activity on their property. We believe that this conclusion is fully consistent with subsequent case law.

I
Background

As your letter points out, regional shopping malls "are fast becoming the dominant form of 'Main Street America'". They are an ideal locale for those who seek to disseminate political and other ideas to large numbers of people.

However, unlike the traditional town center or community business block, a shopping mall is privately owned.1 Your inquiry correctly observes that the issue is the balance to be struck between a property owner's legitimate interest in his or

1 Often, they are enclosed structures, built entirely on private land. Common areas not leased to the tenants, such as parking lots, sidewalks, and roadways, are under corporate supervision and control. In litigation involving expressional, First Amendment activity on such privately owned property, the contested activity, usually the solicitation of signatures, usually takes place unobtrusively in a central courtyard area of the mall.

her private property and an individual's freedom of speech, assembly, and petition.

II
The First Amendment

As noted above, the issue of whether the First Amendment itself secures the right of individuals to engage in expressive activity in privately owned shopping centers was comprehensively addressed by this Office in 62 Opinions of the Attorney General 221 (1977).

As indicated in that Opinion, federal First Amendment principles offer little solace to individuals wishing to picket or demonstrate on private property, or, by extrapolation, to political candidates wishing to "meet the public" in a private shopping center forum. Such activity is not within the protective ambit of the First Amendment.

Nevertheless, as discussed more fully below, the Supreme Court has recognized that a state's "statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others". Hudgens v. National Labor Relations Board, 424 U.S. 507, 513 (1976). Thus, in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Supreme Court held that state constitutional provisions, construed to authorize individuals to speak and petition in privately owned shopping centers, are constitutional as long as the exercise of those rights does not unreasonably interfere with the constitutional rights of the property owner. 447 U.S. at 78-81. See also Oregon v. Hass, 420 U.S. 714, 719 (1975); Cooper v. California, 386 U.S. 58, 62 (1967).

III
Applicability of State Constitutional Guarantees

Several state courts have confronted the issue of political activity within the confines of a privately owned shopping center. Building upon the Supreme Court's affirmation of the Califor-

nia Supreme Court's holding in PruneYard, successful challenges to the enforcement of trespass laws by shopping center owners are those predicated on state constitutional arguments.

A. The PruneYard Case

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), a state's interest in strengthening the right of free expression guaranteed by its constitution and the state's authority to regulate the use of property under its police power were balanced against the shopping center owner's property rights under the Fifth and Fourteenth Amendments and its own free speech rights under the First and Fourteenth Amendments.

In PruneYard, California high school students, seeking support for their opposition to a United Nations resolution, distributed pamphlets and solicited signatures in a corner of a shopping center's central courtyard. Because this activity violated shopping center regulations, a security guard asked them to leave. The students subsequently sued to enjoin the center and its owner from denying them access. The California Supreme Court, reversing a lower court's refusal to issue an injunction, concluded that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned". Robins v. PruneYard Shopping Center, 592 P.2d 341, 347 (Cal. 1979).2

The owner claimed that its right to exclude others underlies both the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law. The Supreme Court acknowledged that, "to the extent that the California Supreme Court has interpreted the state constitution to entitle its citizens to exercise free expression and petition rights on shopping center property", a "taking" literally existed; it nevertheless noted that not every governmental injury to property is a "taking" in a constitutional sense. 447 U.S. at 82. See also Armstrong v. United States, 364 U.S. 40, 48 (1960); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

2 Article 1, §2(a) of the California Constitution provides: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Article 1, §3 provides: "[P]eople have the right to . . . petition government for redress of grievances. ..."

Then, considering such factors as the character of the expressional activity and its economic impact upon the shopping center owner's "reasonable investment-backed expectations", the Court concluded that the activity in issue would not unreasonably impair the value or use of the property as a shopping center. However, the Court emphasized that the shopping center retained the right to "restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions". 447 U.S. at 83. See Robins v. PruneYard, 592 P.2d at 347. See also Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981).

The Court also held that the petitioning activity in PruneYard did not deny the owners' property rights without due process of law. Equally fundamental to private property interests is a state's concern with reasonably regulating property to serve the public welfare, as long as such regulation is neither arbitrary nor capricious. Here, the California Supreme Court did not err in concluding that the restraint upon the use of the privately owned property was reasonably related to the objective sought to be obtained, the promotion of "more expansive rights of free speech and petition than those conferred by the Federal Constitution". 447 U.S. at 81. See Robins v. PruneYard, 592 P.2d at 345, 346.3

The final claim of the shopping center, that a private property owner has a First Amendment right not to be forced by the state to use his property as a forum for the speech of others, was also unsuccessful. The Supreme Court observed that the shopping center, by choice of its owner, is not limited to its personal use but, rather, is a business establishment open to the general public. Thus, views expressed by petitioners or pamphleteers are not likely to be associated with those of the owner.4 Moreover, the state dictates no specific message to be displayed, thus avoiding the danger of governmental discrimination.

3 Justices Powell and White stressed, however, that a different result might be reached should the facts involve an individual business or a single retail establishment. PruneYard, 447 U.S. at 96-101 (Powell and White, JJ., concurring).

4 The Court also pointed out that, by posting signs, the owners of shopping centers are free to publicly disassociate themselves from views of speakers or petitioners.

B. Subsequent State Decisions

Since the decision in PruneYard, at least two other states have recognized a state constitutional right for citizens to engage in speech and assembly activities in private shopping centers. Cologne v. Westfarm Associates, 442 A.2d 471 (Conn. Super. 1982); Alderwood Associates v. Washington Environmental Council, 635 P.2d 108 (Wash. 1981).5 See also Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981) (petitioning on grounds of private college); State v. Schmid, 423 A.2d 615 (N.J. 1980) (rights of free speech and assembly on private university campus).

These decisions each involve a careful balancing process. The right to engage in free speech activity on privately owned property, such as distributing literature, speechmaking, or soliciting signatures, is weighed against competing property interests.

A primary consideration is the nature and use of the private property. To the extent the shopping center is open to the public "by design, purpose, and dedication", the property becomes the functional equivalent of a downtown area or other public forum, and the owner has a reduced expectation of privacy. Cologne, 442 A.2d at 484. As a corollary, speech activities are less threatening to the property's value. Cologne, 442 A.2d at 482; Alderwood Associates, 635 P.2d at 116.6

5 The constitutions of these two states have free speech guarantees similar to those of California. Article 1, §5 of the Washington Constitution provides: "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." Amendment 7 provides: "The first power reserved by the people is the initiative."

Article 1, §4 of the Connecticut Constitution is virtually identical to Article 1, §5 of the Washington Constitution. Article 1, §14 provides: "The citizens have a right, in a peaceable manner, ... to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance."

6 We note that this local revival of the Marsh doctrine [see Marsh v. Alabama, 326 U.S. 501 (1946) (expressional activity on streets of company-owned town protected by First Amendment)] is in the context of strong state constitutional emphasis upon the protection of expressional activity. These state courts emphasize the growing importance of shopping malls, which frequently preempt the traditional town center as a community's most prominent public forum. Cologne, 442 A.2d at 481; Alderwood Associates, 635 P.2d at 117. See also note 8 below.

A second factor is the nature and purpose of the expressional activity. The exercise of free speech, especially that relating to governmental activity, is particularly favored in the balancing process. Alderwood Associates, 635 P.2d at 116.

Finally, the courts have considered the potential for reasonable regulation in balancing the respective interests of the parties. The property owner may regulate, in a reasonable and impartial fashion, the time, manner, and place of the free speech activity. Cologne, 442 A.2d at 483; State v. Schmid, 423 A.2d at 630.7

In those states that confer strong constitutional protection to the rights of free speech, petition, and assembly, the balance has uniformly been struck in favor of such expressional activity. Nevertheless, the court in each case has noted that the result might differ if the exercise of free speech unreasonably interferes with the countervailing constitutional rights of the property owner. Cologne, 442 A.2d at 484; Alderwood Associates, 635 P.2d at 117; Robins, 592 P.2d at 347. See also Commonwealth v. Tate, 432 A.2d at 1389, 1390; State v. Schmid, 423 A.2d at 633.8

IV
Maryland Law

A. Declaration of Rights

Article 40 of the Maryland Declaration of Rights provides:

"[t]hat the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege."

7 In this area of analysis, weight may be given to the existence of convenient, feasible alternative means for individuals to engage in substantially the same expressional activity. State v. Schmid, 423 A.2d at 630.

8 For an application of these and similar considerations to migrant labor camps, see 67 Opinions of the Attorney General 64 (1982) (owners of camps may not prevent access by others to migrants residing in camps). The Marsh doctrine, as applied to migrant labor camps, is briefly reviewed in that Opinion, at 66 n. 4.

The Maryland Court of Appeals has recognized that, under Article 40, freedom of speech is both a right and a principle, rather than a mere "privilege". Police Commissioner v. Siegel Enterprises, Inc., 223 Md. 110, 128 (1960); Anderson v. Baker, 23 Md. 531, 588 (1865). Nevertheless, it is by no means clear that this Article alone, as drafted, protects the exercise of political speech or assembly in the shopping centers of Maryland.

Unlike the courts in California, Washington, and New Jersey, the Maryland courts do not have a strong history of reading Article 40 of the Declaration of Rights more broadly than its federal counterpart, the First Amendment. Cf. Alderwood Associates, 635 P.2d at 113 (concluding that the Washington Constitution confers greater civil liberties than its federal counterpart); State v. Schmid, 423 A.2d at 625-27 (recognizing the New Jersey Constitution to be an alternative and independent source of individual rights). Rather, the Court of Appeals has indicated that Article 40 is to be construed with reference to the First Amendment: "We have said that the legal effect of the guarantee of freedom of speech and press ordained in Art[icle] 40 is substantially the same as that enunciated in the First Amendment. With this in mind, we have treated Art[icle] 40 as being in pari materia with the First Amendment." Sigma Delta Chi v. Speaker of the Maryland House of Delegates, 270 Md. 1, 4 (1973). See also Freedman v. State, 233 Md. 498, 505 (1964), rev'd on other grounds, 380 U.S. 51 (1965).

In light of the Supreme Court's conclusion that the First Amendment alone does not protect expressional activity on privately owned property, it is uncertain whether the Maryland courts would construe Article 40 as itself allowing shopping centers and malls to be used as forums for political speech.9

Furthermore, the language of Article 40 is precatory in nature, rather than mandatory.10 In 1864, an amendment was

9 Similarly, the Court of Appeals has construed Article 13 of the Declaration of Rights, which permits individuals to petition the General Assembly in a peaceable manner, to authorize only direct communication with the legislative body by way of petition or a statement of grievances. Richards Furniture v. Board, 233 Md. 249, 259 (1964). A general right to freely assemble in shopping centers or elsewhere has not yet been read into the Maryland Constitution or Declaration of Rights.

10 But see discussion in note 11 below.

proposed that would have augmented Article 40 with the clause "and no law shall ever be passed to curtail, abridge or restrain the liberty of speech or of the press". Debates and Proceedings of the Maryland Reform Convention to Revise the State Constitution 393 (1864) ("Debates"). After considerable discussion, the Article was modified to read "that every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for abuse of that liberty". Debates at 399. A subsequent amendment, to alter the words "may freely" to "ought to be allowed to", met with some resistance, but also passed.11

B. Police Power

The General Assembly's ability to enact legislation or to amend existing law to promote expressional rights is predicated upon the police power of the State. The State, in the reasonable and nondiscriminatory exercise of its police power, has broad discretion to determine what the welfare of the public requires, and what measures are appropriate for the protection and promotion of the health, safety, morals, and general welfare of its inhabitants.

As noted above, in the interest of promoting individual rights of speech and assembly, the Supreme Court in PruneYard has expressly affirmed a state's ability, in the exercise of its police power, to "adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision". PruneYard, 447 U.S. at 83. The issue thus becomes one of social policy, which requires the balancing of a private landowner's interest in the unencumbered use of his or her property with the public interest in furthering individual rights of speech and assembly. See also 62 Opinions of the Attorney General at 225, 226.

11 Here, Mr. Clarke remarked: "I regard 'ought to' to be equivalent to 'shall'. That phrase runs all through this bill of rights, and it has been over and over again asserted that 'ought to be' means 'shall be'. And construing the words in that way, I will vote 'aye'." Debates at 399. If this passing comment warrants reading Article 40 as an affirmative statement of individual rights, the Maryland courts might interpret Article 40 to authorize the political activity that you suggest. However, in the absence of clear precedent for such a construction, we hesitate to ascribe so broad a meaning to the provision.

V
Conclusion

The Supreme Court has upheld a state's inherent authority to adopt in its organic and general law individual liberties more expansive than those conferred by the United States Constitution. Several state courts have already interpreted their state law to confer speech and initiative rights greater than those guaranteed by the First Amendment, which alone does not afford the right to conduct expressive or political activity in privately owned shopping centers.

Accordingly, it is our opinion that it would be constitutional to adopt legislation to promote freedom of speech, assembly, and petition, even when that protection, to a limited extent, subordinates the interests of private property owners. Nevertheless, we note that any such legislation should permit the owner of a shopping center to fashion reasonable rules to control the manner, time, and place for the exercise of expressional rights on his or her property.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel, Opinions and Advice
Lynette M. Phillips, Staff Attorney, Opinions and Advice
Avery Aisenstark, Chief Counsel, Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because of the importance of the issues reviewed, it is published here in a slightly revised format.