New Jersey Malls and Your Freedom of Speech

“Through wisdom a house is built, And by understanding it is established; By knowledge the rooms are filled With all precious and pleasant riches.  A wise man is strong, Yes, a man of knowledge increases strength; For by wise counsel you will wage your own war, And in a multitude of counselors there is safety.” (Proverbs 24:3-6)

In my last blog I shared how Mark Cahill, a full-time evangelist, and Christian author and teacher, encouraged me to step it up a notch in regard to sharing my faith more conversationally. As a result I found myself heading off to the local mall with Bible, testimony, and tracts in hand. Long story short, (you can read yesterday’s blog here), it was an incredible blessing from the Lord.

Anyway, when I had listened to Mark speak, he had shared how New Jersey was one of only 3 states that allowed free speech in the mall. By that he meant that shopping malls are technically private property and therefore in most cases, they have the right to say what can or cannot be shared on their property, but New Jersey (praise be to God), was the exception to the rule!

Give That to Me in Writing

I suppose it’s the ex-cop in me, but I wanted to see the law. So I dropped Mark an email. He didn’t have the citation on hand, but he directed me to the Christian Law Association (CLA). As per their website, “CLA provides free legal assistance to Bible-believing churches and Christians who are experiencing difficulty in practicing their religious faith because of governmental regulation, intrusion, or prohibition in one form or another.” I wasn’t having any difficulties; I just had a question about the law and glory to God, they answered my question in less than 24 hours!

Here’s the response I received from CLA and I wanted to share it with you.  I hope you find it helpful — especially if you’re a Christian living in Jersey.

Here it is:

“Thank you for contacting the Christian Law Association regarding your right to witness and distribute literature in shopping malls in New Jersey.  Only a few states have declared shopping malls to be a “traditional public forum” permitting free speech rights.  New Jersey is one of those few states.  This means that in New Jersey, your free speech rights are protected in shopping malls as well as in private universities and hallways in residential buildings.  (See State v. Schmid, 423 A.2d 615, 631 – 633 (N.J. 1980); Guttenberg Taxpayers & Rentpayers Ass’n v. Galaxy Towers Condominium Ass’n, 688 A.2d 156 (N.J. Super. Ct. Ch. Div. 1996), aff’d, 688 A.2d 108 (N.J. Super. Ct. App. Div. 1996).

Please note that in most states no free speech activities are allowed in shopping malls without permission of the owner.  The law in most states categorizes malls as private property and permission must be obtained before conducting any witnessing activities.  This includes getting permission to place leaflets on cars parked in a store’s private parking lot.

Federal courts have held that the right of private property owners to control activities on their property outweighs the right of free speech.  This will likely continue to be the case with respect to privately owned businesses and their parking lot areas in states who have not declared shopping malls to be a “traditional public forum”.

 That’s great news (for New Jersey), isn’t it? I also found this little blurb about our ‘first amendment rights and NJ malls’ from a website called the First Amendment Center.

Question: Do individuals have First Amendment rights on others’ private property?

Answer: Generally no. The Bill of Rights provides protection for individual liberty from actions by government officials. This is called the state-action doctrine. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

However, a few states have interpreted their own state constitutions to provide even greater free-speech protection than the federal Constitution offers. For example, the New Jersey Supreme Court has ruled that individuals have free-speech rights at privately owned shopping malls. Most state supreme courts that have examined the issue have disagreed. In April 2002, the Iowa Supreme Court refused to extend its definition of public property to include large, privately owned shopping malls.

Here’s what I found…

I went to the mall yesterday without any of this data, and freely witnessed to a bunch of people and handed out Bible tracts. I passed several security guards (or they passed me) and they seemed quite indifferent to what I was doing. The truth be told, they probably had no idea what I was doing because I wasn’t just handing out Bible tracts willy-nilly, but was engaging folks in one-on-one conversations. The good news (pun intended) is that I could have stood there and handed out Bible tracts willy-nilly, because the NJ Supreme Court has ruled in favor of that issue as long as we don’t block  stores, and/or impede the general flow of traffic (which of course is a reminder to be good stewards of this privilege). I was excited to learn that we can do the same thing on college campuses!

Final Admonition

I hope you found this information to be as enlightening and encouraging as I did, but you might want to take advantage of the situation while the NJ law is still on your side, because I suspect in the not too distant future these laws will be repealed.

“You shall receive power when the Holy Spirit has come upon you; and you shall be witnesses to Me in Jerusalem, and in all Judea and Samaria, and to the end of the earth.” (Acts 1:8)

These articles may or may not relate (this first one does, I don’t think the others do):

• Taking it to the Mall (compassiondave.wordpress.com)
• New Jersey Second Amendment Society Speeches (thelastcivilright.org)
• America’s Best Malls (local.answers.com)
• Commack mall request draws anger from neighbors (newsday.com)
• Christie: Meadowlands mall work to restart soon (newsday.com)

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