Are shopping malls “public spaces”?
A thoughtful reader sent in a comment I’d like to discuss, in response to my post, “What are the property rights of mall owners?” In that post, I argued that a private shopping mall’s owners have the right to decide what conduct is permissible on their property. In the particular case at issue, a mall was being sued because it had called the police to remove protestors who were urging shoppers to boycott the mall.
My commenter wrote this:
Mall owners hold their property out as a public space for people to gather, shop, get entertained. Seems unfair to allow them to hold themselves out as a public asset, get public financing in many cases, provide space for public events (which many malls do), and make serious dough doing so, without expecting that they would be treated as a semi-public place when it comes to Constitutional protections for free speech at the core of our democracy.
I don’t see why property owners need special protections from democratic principles.
This comment certainly reflects widespread views, but it contains a number of confusions (for instance, confusions over the meaning of “democracy” and over the meaning of the Constitution’s protection of free speech). For now, though, I want to focus on just one confusion. It’s this idea of a “public space” as any area where members of the public who are strangers to each other might congregate for a common purpose.


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