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Kings Rule: No Protests
by Ron Davis

War protestors in Ulster, NY, are barred from entering a local shopping mall to solicit support for their cause.

The shopping mall, owned by Kings Mall, LLC, had for a while allowed the protestors to accost patrons in the common areas. But over time, their solicitations became increasingly aggressive and disruptive. And on several occasions, tenants resorted to calling the local police, who at one point arrested two of the protestors and charged them with disorderly conduct, harassment and trespass. Eventually, the mall’s owner asked the courts to put a stop to the protestors’ actions.

Apparently in anticipation of such conduct by solicitors, the mall’s owner had years earlier posted notices at every entrance to the facility that read: “This property is reserved only for the use of the owners and employees of business tenants and their patrons” and entering the property “for any other purpose is prohibited.”

A New York State court responded to the mall owner’s request by ordering the protestors to limit their solicitations to the sidewalks outside the mall during a two-hour time period on Saturday afternoons. The protestors appealed that order. They pointed out that one of the 32 tenants of the mall is the U.S. government, which leases space as a recruitment center for all four branches of the armed forces. Thus, they argued, the court had failed to protect both their state and federal constitutional guarantees of free speech.

Some mall tenants testified, however, that their business had suffered during times when the protestors were on the property. The tenants added that their gross sales consequently dropped as a result. On the basis of such business disruptions, the mall’s owner asked the court to continue to prevent the protestors from entering the mall for solicitation purposes.

A New York appellate court sided with the mall’s owner, explaining, “The protestors have not demonstrated that any state action in involved here other than the fact that the U.S. government has rented one of the 32 commercial spaces in the mall. The mall owner’s actions arise not out of any obligation to the government or in response to any governmental request but, rather, out of its contractual obligation to prevent disruptions damaging to its tenants’ business operations. There is absolutely no evidence that the government is entwined with the mall owner’s conduct or has participated therein.

“Finally,” the court added, “we are of the view that the injury to the protestors in having to continue their protests on a nearby public sidewalk outside the mall is far outweighed by the potential financial loss and the loss of goodwill that will be suffered by the mall’s owner absent court action.” (Kings Mall, LLC v. Wenk, 839 N.Y.S.2d 313)

Decision: July 2007
Published: August 2007



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