The Mauling of Public Space
Kohn, Margaret
IN HIS BOOK Edge City, Joel Garreau tells the story of Bridgewater Township, a community of about forty thousand people located in New Jersey. Like earlier cities that were situated at the...
...To require the mall to allow political solicitation was tantamount to "taking without just compensation...
...These theories of deliberative democracy are indebted to Jurgen Habermas's influential work on the ideal speech situation: if everybody plays fair, tells the truth, speaks respectfully, and only makes claims in the name of the general good, then a rational consensus could emerge...
...Although it was true that the shopping mall implicitly invited the general public onto its premises, this did not transform it into a public space...
...The political theorists who are most concerned with democracy have failed to offer a compelling rationale to challenge the privatization of public space...
...The Mall of America in Bloomington, Minnesota, attracts 37.5 million visitors annually...
...Justice Black emphasized that a democracy had a compelling state interest in maintaining free and open channels of communication so that all of its residents could fulfill their duties as citizens: "To act as good citizens they must be informed...
...In a unanimous vote, the court held that Mill Creek, a New Jersey mall, could not restrict free speech by forbidding political groups from leafleting...
...It was simply devoted to shopping...
...Underground parking, decorative street lamps, indigenous plants, and outdoor tables are among the lifestyle-enhancing amenities...
...Supreme Court found that there was no reason why a state or federal statute or constitutional provision could not guarantee access to the public areas of private malls...
...They describe the world we take for granted as something new and marvelous, and they could not even imagine the world we will soon live in...
...The union picketer and right-to-lifer confront us with meaningful and enduring conflict...
...we need public places that remind us that politics matter...
...In the mauling of public space, democratic theorists have confronted extremely sophisticated marketing experts, and the democratic theorists have lost...
...This finding was consistent with an earlier decision, Hudgens v. National Labor Relations Board (1976), which held that striking workers had no First Amendment right to picket in a mall, but they could assert such a right under federal labor relations laws protecting the processes associated with collective bargaining...
...In Lloyd v. Tanner the Court did not overrule Marsh v. Alabama...
...The Supreme Court's doctrine in "the shopping mall cases" reflects a growing unwillingness to engage the broader political issues emerging from rapid social change...
...Supreme Court, claiming that their Fifth Amendment right not to be deprived of "private property, without due process of law" was violated by the California decision...
...The privatization of public space poses a number of conceptual challenges for public policy makers...
...The Pruneyard decision, which governs to this day, articulated a mediating position...
...The technology of the automobile, the expansion of the federal highway system, and the growth of residential suburbs have changed the way Americans live...
...The mall has become an entertainment mecca, a major employer, and a premier vacation destination...
...Congress or state legislatures could pass statutes mandating that malls of a certain size must provide access to community groups...
...In 1972, the Court concluded that this new concept in shopping—"sometimes referred to as the 'Ma1r—in no way resembled a company town...
...Based on the reasoning in Marsh v. Alabama, it would seem that the right to free speech would apply to other private arenas that were similarly open to a broader public...
...Basically, the Court concluded that activists had other opportunities to engage in political activity...
...The U.S...
...Although Bridgewater was originally a bedroom community for professionals who worked in New York, it gradually developed its own local economy with offices, businesses, and services...
...Does it violate the First Amendment if a shopping mall prohibits orderly political speech...
...Politics and Public Space This string of defeats is a setback for political activists and proponents of an active public life...
...The mall is becoming not only a genuinely multi-use facility, but a completely self-contained utopia of suburban life...
...But this has been slowly changing...
...According to this decision, private actors could not use the police and the courts to enforce practices that violate constitutional rights...
...The shopping mall owners appealed to the U.S...
...Public sidewalks and streets are practically the only remaining available sites for unscripted political activity...
...These theories offer the perfect justification of the speech clause of the First Amendment...
...In New Jersey, at least, malls will be part of this public space...
...Is it ownership or use that determines whether a particular place is truly private...
...While reasonable arguments often just reinforce distance, public space establishes proximity...
...Industry watchers report that by 1999 the average mall visit lasted four hours, up from an hour two decades before...
...In 1999, the Minnesota State Supreme Court heard a challenge from an animal rights group that was prevented from peacefully protesting in the common area of the 4.2-million-square-foot Mall of America...
...The right to exclude others would only be decisive if the mall owners could prove that allowing orderly political speech would substantially decrease the economic value of their property...
...Moreover, they stress that rational, public-spirited discussions are necessary to legitimate democratic procedures and make sure that politics does not degenerate into mere struggles over power...
...The panhandler and the homeless person do not convince us by their arguments, but their presence conveys a powerful message...
...In academic circles, theorists argue that deliberation between citizens is the most promising way to reach rational political decisions...
...The most important public place is now private...
...Although your suburban office park may be closer to your home, it is probably not served by the subway...
...Supreme Court has tried to answer these questions in a series of decisions that have determined government policy deDISSENT / Spring 2001 • 71 PUBLIC SPACE fining the public sphere...
...This futuristic mall had sixty shops and a thousand parking spaces...
...Although the law has not changed in that period, society has...
...The concept of "invitee" went on to play an important role in desegregation cases...
...The majority decided that the arrest violated the freedom of the press and freedom of religion guaranteed by the First Amendment and applied to the states under the Fourteenth Amendment...
...There are no public streets or public sidewalks within the building complex, which is enclosed and entirely covered except for the landscaped portions of some of the interior malls...
...In order to enable them to be properly informed their information must be uncensored...
...As the Seattle-inspired euphoria wanes, the struggle for such legislation could unify labor and other social movements...
...In the company-town case, Justice Black suggested that the enforcement of state criminal trespass laws constituted state action...
...After more than a decade of discussion, in 1988 they inaugurated Bridgewater Commons, a mall...
...If judicial intervention will not protect the public sphere, then political action still presents an alternative...
...A concurring opinion by Justice Felix Frankfurter stated that fundamental civil liberties guaranteed by the Constitution must have precedence over property rights...
...What it lacked was a sense of place...
...Again drawing upon a long history of precedents regarding public regulation of private property, the court concluded that the due process clause only required that the laws "not be unreasonable, arbitrary, or capricious and that the means selected shall have a real and substantial relation to the objective sought...
...Because labor unions are dependent on tactics like the picket line, they would be powDISSENT / Spring 2001 n 75 PUBLIC SPACE erful proponents of such a law and useful allies for other activist groups fighting to maintain access to public space...
...Individual retailers could not provide the capital necessary to implement a comprehensive plan that included environmentally sensitive landscaping and rational traffic management...
...They could also establish guidelines to extend broader protections for political activity...
...This new office space is built in edge cities—suburbs that now incorporate millions of square feet of commercial development...
...They could make use of the public roads and sidewalks on the perimeter of the shopping mall...
...It cited a long list of precedents—cases involving bridges, roads, and ferries—to establish that the right to private property is not absolute...
...Ironically, the Bridgewater Commons Mall was not originally the initiative of commercial real estate developers...
...They could negotiate a policy guaranteeing free access to a community booth or public courtyard in the mall...
...If private space takes on a public character in cases like the company town when it colonizes every aspect of life, then it is time to reconsider the character of the mall...
...The West Edmonton Mall has more than fifteen thousand employees...
...But this is unlikely to happen...
...How should the right to private property be weighed against the legitimate state interest in sustaining a public sphere...
...He noted that a typical community of privately owned residences would not have had the power to pass a municipal ordinance forbidding the distribution of religious literature on street corners...
...This is not only the fault of greedy developers...
...DISSENT I Spring 2001 n 73 PUBLIC SPACE The U.S...
...The company—Gulf Shipbuilding Corporation based its argument on the common law and constitutional right to private property...
...It decided that private property does not "lose its private character merely because the public is generally invited to use it for designated purposes...
...It is true that television, newspapers, and direct mail constantly deliver a barrage of information, including political leaflets...
...Writing for the majority, Justice Lewis Powell argued that a shopping mall was not the functional equivalent of a company town because it was not a space where individuals performed multiple activities...
...Article 1, section 2, 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...
...Why are these tactics seldom even employed, let alone successful...
...The obvious place to start is to support downtown business districts and other public places that still encourage diversity and invite political activity...
...Although malls like the one in Bridgewater manage to preserve natural oases like "Mac's Brook," they fail to protect oases of public openness in a privatized world...
...The Supreme Court rejected the mall owners' claim to absolute dominion over their property...
...MARGARET KOHN iS assistant professor of political theory at the University of Florida (Gainesville...
...a town is a place in which you live...
...By building and upgrading roads, modifying zoning, and approving permits, localities still have bargaining power over some aspects of development...
...In the Lloyd decision, there was no idealistic discussion of the free exchange of ideas necessary to maintain an informed citizenry...
...Living at the mall might still seem unusual, but it is a culmination of a dynamic that has been accelerating throughout the 1990s—the emergence of what Joel Garreau has called edge cities...
...Since the facts of the case were substantially the same as those in Lloyd v. Tanner, the Court saw no reason to reconsider the issue...
...The students had challenged the shopping center's policy under both the U.S...
...Within this complex, in addition to the stores, there are parking facilities, malls, private sidewalks, stairways, escalators, gardens, an auditorium, and a skating rink...
...They reveal the rough edges of our shiny surfaces...
...But the concept of deliberation will not be useful if it emphasizes the rationality that emerges from the ideal speech situation...
...And this is probably not an accident...
...Although the Court tried to emphasize the differences between the two cases, it actually modified its view of the relevant doctrine...
...The owners also claimed that the right to exclude others is an essential component of the definition of private property...
...The mall is also a workplace...
...A law may not restrain or abridge liberty of speech or press...
...And they are rapidly disappearing...
...The ideal speech situation is basically an extremely idealized depiction of the norms of scholarly journals or conferences...
...Nothing approaching the ideal speech situation ever happens in the mall...
...An April 1999 survey by the journal Shopping Center World found that half of the 150 new projects under construction are multi-use malls...
...The owners could exclude expressive conduct, even if it did not disrupt the commercial functions of the mall...
...There is something quaint and anachronistic about reading the old shopping mall cases...
...Only five—California, Oregon, New Jersey, Colorado, and Massachusetts— recognized broader protections for speech...
...The mall is clearly the nodal point of social life, but is it a town...
...At first, it seems like this emphasis on "deliberative democracy" is precisely what is needed to reinvigorate our commitment to the public sphere, to street corners with soap boxes and speakers, or at least their modern equivalents...
...Writing in 1972, Justice Powell described the Lloyd Center in Portland Oregon like this: The Center embodies a relatively new concept in shopping center design...
...He reports that Americans no longer sleep in the suburbs and work in the city...
...These places are not banned by authoritarian legislatures...
...DISSENT / Spring 2001 n 77...
...If an individual does not have to allow Jehovah's Witnesses into her home, why should the company have to allow them on its property...
...The opinion concluded that property rights must be weighed against other state interests...
...When new, large-scale mall developments are proposed, citizens have the most leverage to demand some form of continued public access...
...There are undoubtedly positive sides to this development...
...In that case, the Supreme Court struck down a restrictive covenant preventing residents from selling their homes to blacks...
...We can learn something from facing our fears that we cannot learn from debating principles...
...Although the owners could place reasonable restrictions on expressive conduct to make sure that politics did not disrupt the commercial activities of the mall, they could not deny access to the only place left in New Jersey where there is an opportunity for face-to-face contact with large groups of people...
...The California State Supreme Court originally found in favor of the students, ruling that the state's criminal-trespass law would constitute state action for the purposes of the First Amendment protections...
...Especially when a private company performs public functions, it opens itself up to greater government scrutiny and regulation...
...The last shopping mall case, Pruneyard Shopping Center v. Robins (1980), dealt with a group of high school students who attempted to gather signatures for a petition protesting a United Nations resolution condemning Zionism...
...Although the contract was undeniably private, it could not be enforced without "the active intervention of the state courts, supported by the full panoply of state power...
...The court, however, rejected this logic...
...Since the Pruneyard decision, fourteen states have considered whether their own state constitutions protect expressive conduct in shopping malls...
...More important, a traditional downtown could not guarantee the most highly prized amenities: safety, cleanliness, and order...
...But there was a second issue at stake...
...The Justices found that "neither the invitation to the public to shop and be entertained . . . nor the public financing used to develop the property are state action for the purposes of free speech" under the Minnesota Constitution...
...We need to engage in more careful reflection on the reasons why we should protect free speech and public space...
...Some of these are New Urbanist inspired developments that try to mimic the ap74 n DISSENT / Spring 2001 PUBLIC SPACE peal of old-fashioned downtown areas...
...They link higher density housing with office and retail space, all unified by architectural cues that evoke the turn of the century...
...and the California State Constitutions...
...The edge city citizen need never traverse public space...
...The politics of the public sphere requires no resources—except time and perseverance...
...At night, the security guards have to herd out the lingering teenagers, who are in no rush to go home to their monotonous housing developments...
...In dozens of cities, including Houston, Boston, Tampa, and Denver, there is more office space outside of the central business district than within it...
...It becomes possible to spend an entire day or lifetime without encountering street corners, bus stops, or park benches...
...It becomes ever more commonplace to move from home to office to shopping mall in the automobile...
...One of the appeals of the mall is precisely that it provides an environment carefully designed to exclude any source of discomfort...
...The Court, however, also rejected the students' claims to protection under the free speech clause of the First Amendment...
...The opinion, written by Justice Hugo Black, emphasized that all citizens must have the same rights, regardless of whether they live in a traditional municipality or a company-owned town...
...She is completing a book entitled Locating Radical Democracy: A Genealogy of Political Space...
...The mall was no company town...
...We need free speech and public places not because they help us, as a society, reach a rational consensus, but because they disrupt the consensus that we have already reached too easily...
...Public spaces are the last domains where the opportunity to communicate is not something bought and sold...
...The language of the California free speech clause was more expansive...
...In the morning the doors open to waiting seniors, the famous mall-walkers who appreciate the controlled climate, cleanliness, and safety...
...Its hundreds of retail establishments are not the only draw—it has a wedding chapel, the nation's largest indoor amusement park, a post office, a police station, and a school...
...The Court first considered the issue in 1946 in Marsh v. Alabama, which dealt with a Jehovah's Witness who was arrested for distributing religious pamphlets in the business district of a company-owned town...
...Why then, should a corporation be allowed to do so...
...They are the places where insurgent political candidates gather signatures, striking workers publicize their cause, and religious groups pass out leaflets...
...The support of local government agencies, town councils, and planning boards is crucial for a project on the scale of the modern mall...
...Let's face it...
...Collective action is also necessary...
...As more companies relocate to the suburbs, the average American's commute time decreases...
...Sometimes it must be in your face for it to have any impact...
...0 NE SUCH project is in the new Towers at Zona Rosa, a shopping mall situated ten minutes from downtown Kansas City...
...One way to do this would be to pass legislation applying speech and petition guarantees to the functional equivalents of traditional public forums...
...Approaching the mall primarily as an aesthetic or even a sociological issue, however, overlooks the enormous political consequences of the privatization of public space...
...But unlike the face-to-face politics that takes place in the public sphere, these forms of communication do not allow the citizen to talk back, to ask a question, to tell a story, to question a premise...
...Rather than considering the goal of the First Amendment— presumably to foster the free expression characteristic of a democracy—the Court focused narrowly on the supposed absence of state action...
...As indicated in the Pruneyard decision, there is no constitutional provision that would invalidate these kinds of laws...
...The growth of edge cities reflects a complete transformation of the spatial structure of postwar American life...
...A mall is a place you visit...
...In the 1972 decision Lloyd v. Tanner, the Court considered whether First Amendment guarantees extended to the shopping mall...
...The West Edmonton Mall has more than 800 shops, 11 department stores, 110 restaurants, 20 movie theaters, 13 night clubs, a chapel, a large hotel, and a lake...
...The protestors argued that the mall was a public space because it had been heavily subsidized by the state, which provided $186 million in public financing...
...The typical pattern of bedroom communities situated along the outskirts of urban cores is disappearing...
...Given that the town was freely accessible to outsiders, it implicitly invited in the general public, thereby voluntarily incurring quasi-public obligations...
...Moreover, since the First Amendment only limited "state action" there was no constitutional basis to apply it to private entities...
...FI VEN IN AREAS where such tactics were unsuccessful at the state level, it would still be possible to adopt similar strategies at the local level...
...By a circuitous route, the dream of Bridgewater will come true and the residents will get their commons...
...It was the compromise reached by the community agency committed to maintaining the small town's quality of life and avoiding the strip-mall aesthetic...
...the invitation to the public was only to shop...
...Some of the stores open directly on the outside public sidewalks, but most open on the interior privately owned malls...
...Provocative speech cannot be something that 76 n DISSENT / Spring 2001 PUBLIC SPACE happens elsewhere---in academic journals, conferences, mass mailings, and highly scripted town meetings...
...The stores are all located within a single large, multi-level building complex sometimes referred to as the "Mall...
...Because they presumably spent, at most, part of their day at the shopping mall, they could become informed citizens elsewhere...
...It seemed obvious that a mall was simply devoted to a single activity—shoppingwhile a town was defined by the physical proximity of diverse spaces and activities—housing and services, leisure and work, consumption, education, and production...
...This proximity has distinctive properties that democratic theorists often overlook...
...By 1990, there were more than three hundred mega-supermalls, each with at least five department stores and three hundred shops...
...They argued that the mall was no public forum...
...It still insisted that the mall was private and therefore outside of the reach of the Bill of Rights...
...For a robust democracy we need more than rational deliberation...
...But this individualist solution, by itself, is naïve...
...Although they do not manufacture automobiles or aircraft carriers, they do produce the spiral of fantasy, desire, and consumption that is now North America's number one export...
...The assumption was that citizens had other chances to be exposed to 72 n DISSENT / Spring 2001 PUBLIC SPACE diverse ideas and viewpoints...
...But as workplaces become more and more decentralized, the density needed to support public transportation like commuter railroads also disappears...
...Their disappearance is more benign but no less troubling...
...As theme parks, megamalls, and gated communities merge, nostalgic recreations of the village green replace actual public space...
...By concentrating on the value of speech rather than the importance of space, they turn the public sphere into an abstraction...
...IT IS PUZZLING that the justices in Lloyd did not really analyze the logic of Marsh v. Alabama on the critical issue of state action...
...The Shopping Mall Cases The Supreme Court addressed the implications of private ownership of quasi-public spaces in a series of cases decided between 1946 and 1980...
...The new edge city geography poses a challenge to the doctrine established by the Supreme Court...
...Privatization and Public Policy More than twenty years have passed since the Pruneyard decision...
...According to the Court in Marsh v. Alabama, "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it...
...Compared to today's supermalls, Lloyd Center is a neighborhood corner store...
...That is the implication of a decision reached by the New Jersey State Supreme Court on June 13, 2000...
...According to Powell, political activists misunderstood the invitation if they turned the mall into a public forum...
...Local residents dreamed of a town center, some composite of a New England village green and a Tuscan piazza, a place where old people could gossip, young people could farsi vedere (make oneself seen), and mothers could bring young children while getting a latte, a sandwich, or some postage stamps...
...part of the fantasy involves entering a world where no homeless person, panhandler, or zealot can disturb the illusion of a harmonious world...
...Some stores open on both...
...Most people do not value the disruption and unease caused by other peoples' political speech...
...If the state may make no law abridging the freedom of speech, then it cannot pass a criminal-trespass statute penalizing a citizen simply for engaging in non-disruptive expression in a place where she would be legitimately allowed to enter...
...The Travel Industry Association of America reported that shopping is the number one vacation activity in America...
...This same logic was used in a much more famous case, Shelley v. Kraemer, which was decided by the same court in 1948...
...As recently as 1992, the Supreme Court held that labor organizers had no right to try to contact potential members by passing out leaflets in the parking lot of a Lechmere's store—this despite the fact that the only alternative space was a forty-six-foot-wide grassy strip separating the lot from the highway...
...But it could have the unintended consequence of channeling debate over privatization into the public arena and out of the closed chambers of the Court...
...Fifty of the new multi-use malls include office space, libraries, housing, or hotels...
...instead it emphasized how the two cases differed...
...Although the plan relies on thirty thousand square foot department stores to anchor the retail plaza, it also includes loft-style apartments situated above boutiques and cafés...
...Today, the only place that many Americans encounter strangers is in the shopping mall...
...The Bridgewater Commons and hundreds of supermalls like it have long troubled architects and critics who bemoan the homogeneity, sterility, and banality of the suburbs...
...Like earlier cities that were situated at the intersection of transportation routes, it owes its location to the confluence of two superhighways, routes 287 and 78...
...In Lloyd v. Tanner, the Supreme Court decided to overlook these precedents, assuming a much narrower definition of what constitutes state action...
...This time, however, the majority upheld the mall's policy forbidding the distribution of handbills on its premises...
...The soothing lighting, polished surfaces, pleasant temperature, and enticing displays are not the only allure...
Vol. 48 • April 2001 • No. 2
