Are shopping malls “public spaces”? — VOICES for REASON

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.

It’s easy to see why people have this concept. We have a long history of “public property” in this country: public parks and squares, roads and highways, schools and colleges, assembly halls and arenas. All of these sit on parcels of land owned by the government. Since everyone’s tax money goes into buying and maintaining these facilities, there’s an obvious argument that everyone should have an equal right to use the land for their own purposes—including constitutionally protected speech. This is how you get protest marches closing down public streets, and speeches by enemies of America given on public university campuses.

The other side of the argument asks why taxpayers should tolerate public property being used in ways they abhor. So, you get environmental groups trying to prevent snowmobilers from making noise on federal parkland, and it takes nine sages on the Supreme Court to decide whether a Christian manger scene belongs on the courthouse lawn.

Do you see the insoluble problem here? “Property” that’s owned by everybody is really owned by nobody. The same piece of land cannot, for example, be used for purely secular purposes and to promote Christianity at the same time. Consequently, battles will always be erupting over any parcel of “public property,” and politicians will accrue power by posing as the indispensable arbitrators of conflicting public opinions. The more land becomes “public property,” the more politics will control its use.

Did I say this problem is insoluble? Actually, it’s not. There is a solution. It’s called private property.

On private land, the owner rightfully limits how others can use it. Do you want to talk on your cell phone? Don’t expect the movie theater to allow it while the show is running. Do you seek Israel’s destruction? Don’t expect a synagogue to tolerate your passing out pamphlets. In all such cases, no one’s rights are violated. There is no right of free speech on someone else’s land. A proper legal system protects each person’s freedom to speak his mind on and with his own property. There’s no need for politicians and judges to “balance” opposing rights, because there are no opposing rights.

When private property is protected by law, those who violate property rights should expect to be arrested (or sued). Most certainly, a crowd of people seeking the financial ruin of a shopping mall by boycott should not expect the mall’s management to stand aside nonchalantly while an organized campaign seeks to drive customers away. It makes no difference that a given shopper might be receptive to the boycott message. The shopper has no more rights than the boycotter in the matter. Both are standing on mall property by permission, on whatever terms the owners have defined. If an individual isn’t willing to observe those terms, no one is forcing him to shop there—he can shop elsewhere, having lost nothing that was his to begin with.

So when my commenter charges that mall owners “hold their property out as a public space,” he’s stressing a superficial similarity that obscures the fundamental difference between government property and private property. The surface similarity is that both may be places where strangers assemble for common purposes. But it’s the distinction that’s crucial. Private property is private—its owners, and nobody else, control how it’s used.

My commenter observed, stores “make serious dough” by attracting customers. While that’s true, his inference from that fact is false. It’s not the case that earning profits is a privilege, in exchange for which a store owner is obligated to yield some undefined quantum of control over his premises, so that the store becomes a “semi-public place.” Pursuing profits is a store owner’s right. There is no rational basis upon which the legal system can chip away at an owner’s property rights—much less declare his store a “public asset”—simply because the public visits at his invitation. Such a policy would destroy property rights across a huge swath of the economy. On a proper view, the owners of private malls (and restaurants, theaters, and other commercial premises) do not hold their property out as a “public space” in the same sense that government property is a “public space.”

My commenter is correct to point out that the issue becomes more clouded when malls are built with public financing (or through eminent domain procedures that use government force to take land from owners unwilling to sell voluntarily). But this difficulty that can readily be solved by ending such evils as public financing and eminent domain for shopping malls.

Ultimately, the goal should be to uphold private property rights on principle—for mall owners as well as the rest of us.

Image: Wikimedia Commons