Prop Briefs

Rule of Law.
Regional shopping centers must permit leafleting on societal issues, subject to

reasonable standards set by the centers.
Facts. The plaintiffs are a group that opposes military intervention in the Persian Gulf and they
sought public support for their views. They sought to offer these views at several large regional
and community shopping centers. A few of these malls denied plaintiff’s request to leaflet on their
premises. The shopping centers permits and encourages non-shopping activities on its premises,
including access for community groups, speech, politics and community issues.
Issue. Can the owner of a regional shopping center deny a group the right to enter the center and
distribute leaflets?
Held. No.
Regional and community shopping have become the new gathering point of citizens, displacing
downtown business districts.
New Jersey grants its citizens substantive free speech rights, and those rights are not limited to
protection from government interference.
In determining the existence of the State free speech right on privately owned property, three
factors are the relevant consideration: (1) the nature, purpose and primary use of such private
property, generally, its “normal” use, (2) the extent and nature of the public’s invitation to use that
property, and (3) the purpose of the expressional activity undertaken upon such property in
relation to both the private and public use of the property.
The first two elements are considered together, and there is an implied invitation to leaflet in this
case. The shopping centers intentionally draw people and become a replica of the community.
They encourage public use of their property, and so that diminishes private property interests.
The third element examines the compatibility of the free speech sought to be exercised with the
uses of the property. Here, business will not disappear because of the leafleting. Whatever
disorder might otherwise exist can be controlled by the center by adopting rules and regulations
concerning the time, place, and manner of such leafleting.
The speech can be accomplished without interfering with the owner’s profits. The free speech
sought is a limited free speech right but is the most substantial in our constitutional scheme.
Since the owner will have broad power to regulate, any interference caused by the speech will be
negligible.
Dissent. Merchants should not be required to provide a forum, place or occasion for speech. They
are in business for business sake and are not instruments of the state. The purpose of a
shopping mall is to shop, not to educate.
Rule of Law. Under New Jersey state property law there is no right to bar access to government
services available to migrant workers; therefore, no trespass occurred.
Ad
Facts. Tedesco (property owner), a farmer, housed migrant workers on his property. Co-
Defendant Shack (Shack) was employed by a legal aid organization funded pursuant to an act of
Congress which was designed to aid migrant farm workers. Co-Defendant Tejeras
(Tejeras)contacted Co-Defendant Shack after having a dispute with property owner over access
to a migrant worker who needed medical attention. Shack wanted to speak with another migrant
housed at the farm regarding a legal matter. Both Shack and Tejeras then entered upon the
property to see the migrants. Property owner Tedesco then stopped both Defendants and, after
hearing of their intentions, offered to go and get both of the migrants. Property owner also stated
that he would have to be present when Co-Defendant Shack met with the migrant regarding the
legal matter. Co-Defendants declined such an arrangement stating that they would go to the living
quarters of the men they sought and speak privately. Property owner summoned a st
ate trooper and then executed a written complaint of trespass. Co-Defendants were prosecuted in
Municipal and County Court by counsel for property owner and were convicted in Municipal Court
and again in County Court by trial de novo. Thereafter, appeal was taken to the Appellate
Division, but, prior to argument, the Supreme Court of New Jersey certified the appeal.
Issue. Should the property owner be allowed to refuse access to migrant workers housed upon
his property and to prosecute aid workers for trespass?
Held. No. Remanded to County Court with directions to enter judgment of acquittal on each
Defendant.
Neither the First Amendment nor the Supremacy Clause of the Constitution is implicated in this
case. As to the First Amendment, the Court considered a case regarding workers living in a
“company owned” town where the company attempted to prosecute Jehovahs’ Witnesses for
trespass. [Marsh v. Alabama, 326 U.S. 501 (1946)]. The entire town was owned by a private
corporation and was otherwise indistinguishable from other towns. In such a case the rule barring
trespass conviction rests on the fact that the entire town is opened to the general public. As to the
Supremacy Clause, the Defendants argued that the application of the state trespass statute
would defeat the purpose of the federal act which empowered Co-Defendant Shack to render
legal aid to migrants. The Court reasoned that no definitive holding could be found to support
either Constitutional argument, and further that under New Jersey state law there is no property
right which includes the right to bar access of migrant workers
to governmental services. Therefore, no trespass occurred.
The Court found that “Title to real property cannot include dominion over the destiny of persons
the owner permits to come upon the premises.” In other words, the right of property is not an
absolute right. Citing historical precedents the Court found that property may not be used to injure
others and that necessity has historically been an acceptable reason to enter the private lands of
another. This is a public policy holding.
There is no need to consider whether the migrants are tenants of the property owner. The Court
found that to use such reasoning would be contrived and would not benefit the class of migrant
workers the Court was endeavoring to protect with its judgment.
The Court attempted to strike a balance between the rights of the migrants and those of the
property owner. This holding is not to be considered as opening the farm to the general public.
Also, in the interest of security the owner may ask visitors to identify themselves and state their
general purpose for visiting. The owner may not prevent migrant workers from living with dignity
or with associations which are customary to all citizens.

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Rule of Law.

Regional shopping centers must permit leafleting on societal issues, subject to

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