Leaflet and Let Be
by Ron Davis
New Jersey shopping centers can no longer require political parties to buy a liability insurance policy in order to pass out leaflets on center property.
The prohibition against such insurance results from a ruling by the New Jersey Supreme Court in a lawsuit against the owners of a Secaucus shopping center, The Mall at Mill Creek. In that case, the Green Party of New Jersey had objected to having to pay the premium on an insurance policy, arguing that such a requirement is a violation of the constitutional right to freedom of speech.
But the owners of the shopping center had insisted that such insurance protected them, as private property owners, from lawsuits resulting from injuries that might occur during the leaflet distribution. So the owners required leaflet distributors to provide a valid certificate of insurance, including general liability insurance in the combined single limit of $1 million. Plus, the leaflet distributors must sign a "hold-harmless" agreement that would further protect the shopping center owners in case of an accident or any "act or omission" of the leaflet distributors.
The Green Party learned that liability insurance for such an occasion would cost $665, and believing that the cost was too restrictive, it sued. Party members argued that shopping centers and regional malls have become primary sites for passing along vital information to voters about political issues and so should be receptive to party workers. Any restriction on such activities, they added, prevents the flow of information and public forum.
In ruling in favor of the Green Party, the New Jersey Supreme Court noted: "Expressive activities take many forms. It seems somewhat unfair to charge leafleteers for occasionally exercising expressive rights when skylarking teenagers, who accept the general invitation of the Mall and pursue expressive activities that would appear to pose a greater risk, are not asked to pay anything for that privilege."
In summing up, the justices ruled, "The mall owners' proofs on this record fall far short of demonstrating that the insurance requirements posed by them reasonably are required to achieve legitimate business objectives while preserving the leafleteers expressive rights. Because of that deficiency in its proofs, we have no alternative but to invalidate the conditions the mall owners have imposed."
However, the judge added, "a hold-harmless agreement related to the actual activities of the leafleteers that cause liability to be created would not be objectionable." (Green Party v. Hartz Mountain Ind., 752 A.2d 315 [N.J. 2000])
Decision: June 2000
Published: July 2000