Soapbox at the mall

Nov 1, 2000 12:00 PM, MICHAEL FICKES

As privately owned places where the public gathers, shopping centers face a delicate balance in trying to manage free speech activities without violating anyone's rights.

For 20 years, shopping center management and security departments have worked to tailor their policies regarding free speech activities to conform to various state supreme court rulings. The challenge is to establish policies that manage free speech activities without infringing on protected free speech rights or the rights of private property.

Such policies, however, may not be enough when a group of protesters takes a mall by surprise. When it happens, a measured response by mall management and security can handle - if not forestall - the problem.

Consider the case of a mall located in a central California coastal city. Not long ago, a group of bicycle enthusiasts showed up at the mall's management offices to apply to conduct a demonstration promoting the use of bicycles over cars.

The group requested three dates - the last Friday of three consecutive summer months - to assemble its bicyclists on a bike path running across mall property. Mall management agreed to allow the event, with the understanding that the demonstration would last a certain amount of time and demonstrators would remain on the bike path.

On the day of the first demonstration, the bicyclists changed their plans. "They surprised us by leaving the approved path," says the mall manager, who asked not to be identified. According to the manager, approximately 300 demonstrators gathered on the bike path and suddenly split into four groups of about 75 each. Each of the four groups then darted toward each of the main mall entrances. Upon reaching the entrances, the lead bicyclists hopped off and pulled the doors open. The followers then rode their bicycles straight into the mall and zoomed through the main corridor, screaming their message about riding bicycles instead of driving cars.

"They were gone in two minutes," says the manager. None of the shoppers in the mall at the time got in the way or sustained an injury.

The group, however, had received permits to conduct two more demonstrations. Sensing a volatile situation, the mall manager did not revoke the permits, but he did inform local police about the incident. He also informed the protest organizers that a repeat performance would not be tolerated.

He devised a plan to handle the bicyclists if they again ignored the boundaries set for the demonstration.

"We felt we had to make a good faith effort to stop them at the entrances to the mall if they tried the same thing again," he says. "We didn't want to be in a position of having done nothing if they came back and someone were injured."

When the date of the next demonstration arrived, the manager stationed mall security officers at each of the entrances shortly before the bicyclists were due to appear. He gave strict instructions that the officers should attempt to stop anyone from riding a bicycle into the mall.

At the same time, he instructed the officers to avoid physical confrontations with the protesters. If it became obvious the demonstration couldn't be stopped, the officers were instructed to back off. The manager did not want an injured security officer, protester, or shopper. He also didn't want the property to provide the headlines for the evening news.

"Our plan was to make more than a token effort to stop them," he says. "But if we couldn't stop them, we would let it happen and turn our attention to protecting shoppers in the mall from being run over."

On two more Friday afternoons, an army of 300 bicycling demonstrators descended on the mall, ignored the demands of security officers to stop, tore through the entrances, and rode through the mall corridors, yelling their message.

The measured response to the demonstration may appear on the surface to have failed. But the aftermath of the demonstration suggests that the manager's plan succeeded. None of the three demonstrations lasted more than two minutes. No one was hurt. No news reports produced unfavorable publicity about the mall. And the demonstrations came to an end.

Gene Thompson, vice president of corporate security for San Diego- based Macerich, a shopping center - company, has also had to develop ad hoc responses to surprise demonstrations. Not long ago, at the Macerich Fashion Fair Mall in Fresno, Calif., a group showed up unannounced on a Saturday morning intending to demonstrate against the manufacturing policies of one of the mall's prominent retailers.

"They were there by the time the manager arrived," recalls Thompson. "She decided to allow the protest. The group disrupted business in the common area for about an hour and then left.

"Later the group called the manager and told her they were coming back. At that point, she explained our policy and asked them to apply for a permit in the management office.

"They ignored our request and showed up with 100 protesters, again on a Saturday. We explained to them that they could assemble on a public sidewalk near the mall but not in the mall or on private mall property. They refused to leave and began to demonstrate on mall property. This time, we called the police and exercised our rights as property owners."

The police dispersed most of the group. Some, however, refused to leave, and the police arrested them.

The incident produced a number of stories in the media along with letters to the editor criticizing the mall's policy.

A few weeks later, the group planned another protest. The manager again requested that the group apply to the management office for a permit and follow the mall's procedures.

This time, the group backed down because a number of members apparently decided against another confrontation with the police and further arrests.

"People will often show up in the parking lot in front of our Target anchor store," says G. Michael Hansen, director of the Grossmont Shopping Center Co. in La Mesa, Calif., a shopping center operated by CB Richard Ellis. "They may be petitioning to get a candidate or issue on the ballot. In these cases, our security officers will inform them that they need a center permit to petition on the property and ask them to check in at the mall management offices. Most people honor this request."

Hansen reserves a booth for groups who want to collect signatures or distribute literature related to an issue. The booth occupies a relatively prominent space in the center's common area. Most of Grossmont Center is uncovered, but the booth stands out of the weather in an enclosed shopping area adjacent to the Target entrance and several in-line retail stores.

"We probably attract more groups to our center than some others do," Hansen says. "That's because we have a designated area, and others often don't. But if you don't provide a designated area, it can cause trouble."

California courts have established rules favoring broad access to individuals and groups with messages to communicate.

On the other hand, the courts have also said that centers can establish rules to govern the behavior of groups on center property.

"In the 1997 case Union of Needle-trades, Industrial, and Textile Employees v. Taubman Company, a California appellate court reviewed and accepted rules established by five California malls," says Suzanne Ilene Schiller, an attorney with Spector Gadon and Rosen in Philadelphia, who consults with shopping centers on these issues. Schiller adds that rules governing free speech activities in malls do not relate to specific union and labor activities, which are governed by labor laws.

Then again, rules are made to be broken. Shopping center security policies related to expressive activity should also address the possibility that a group may decide to break the rules. Security officers need to be trained to handle such scenarios, and the training should teach restraint in these circumstances, experts suggested.

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© 2008 Penton Media Inc.

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