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46 Alb. L. Rev. 1501 (1981-1982)
Access to Private FORA and State Constitutions: A Proposed Speech and Property Analysis

handle is hein.journals/albany46 and id is 1513 raw text is: ACCESS TO PRIVATE FORA AND STATE CONSTITUTIONS: A PROPOSED SPEECH AND PROPERTY ANALYSIS Freedom of speech is fundamentally important in a democracy.1 To give this freedom practical effect, the United States Supreme Court has recognized that speakers must have access to places where people congregate.2 States and localities are thus forbidden, under the first and fourteenth amendments of the United States Constitution,, to interfere unreasonably with speech in traditional public fora such as sidewalks and parks.4 Socioeconomic changes, however, have shifted the focus of community life from these traditional fora to privately owned ones, such as shopping centers.' In light of these changes, an absolute prohibition of expressive behavior on private property di- minishes the speaker's access to the public. Use of the first amendment' to counter the threat of private abridgment of speech in private fora raises constitutional obstacles not present when the government acts to abridge free speech. Specifi- See T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970). The author summa- rizes the functions that freedom of expression performs in a democracy: assurance of individual self-fulfillment, advancement of knowledge and discovery of truth, allowance for individual par- ticipation in decision-making, and maintenance of a more stable community. For cases discuss- ing the importance of speech, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Palko v. Connecticut, 302 U.S. 319 (1937); Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J., concurring); Abrams v. United States, 250 U.S. 616, 624 (1919) (Holmes, J., dissenting); Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917). ' Cf. Hague v. CIO, 307 U.S. 496, 515-16 (1939) (The privilege of a citizen of the United States to use the streets and parks for communication of views ... must not ... be abridged or denied. Id.); Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315 (1968) ([Sjtreets, sidewalks, parks, and other similar public places are so historically associ- ated with the exercise of First Amendment Rights that access to them ... cannot constitution- ally be denied .. ). See T. EMERSON, supra note 1, at 299-309. ' The first amendment and the entire Bill of Rights was once held to apply only to the federal government and not the states. Barron v. The Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). With the adoption of the fourteenth amendment, U.S. CONST. amend. XIV, in 1868, most of the federal Bill of Rights, including the first amendment, has been held to apply to the states. See, e.g., Crist v. Bretz, 437 U.S. 28 (1978); Duncan v. Louisiana, 391 U.S. 145 (1968). See note 2 supra. See Note, Private Abridgment of Speech and the State Constitutions, 90 YALE L.J. 165, 169-71 (1980) (which identifies and collects data on other private fora such as privately held residential communities, nursing homes and condominium complexes). ' U.S. CONST. amend. I. 1501