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41 Ariz. L. Rev. 1 (1999)
Attention, Shoppers: The First Amendment in the Modern Shopping Mall

handle is hein.journals/arz41 and id is 15 raw text is: ATTENTION, SHOPPERS:
THE FIRST AMENDMENT IN THE MODERN
SHOPPING MALL
Mark C. Alexander*
The modem American shopping mall has grown into a central institution of
ever-expanding importance in our lives. The mall is a vibrant and dynamic place,
offering a seemingly endless variety of activities for all who come. We shop, eat, play,
and virtually live there. The modem mall has replaced the downtown of yesteryear.
However, with the growth of malls we have seen a reduction in the amount of public
debate, as mall owners have shut their doors to those who wish to express themselves.
As a result, the millions of Americans who go to malls every day are kept in the dark
as to the pressing matters of the day. This state of affairs flies in the face of the core
value of the First Amendment-robust public debate.
Unfortunately, the United States Supreme Court has held that there is no
constitutional right to engage in expressive activity in privately owned shopping malls.
While the Court has recognized the individual states' right to extend to their citizens
greater protections under the state constitution, only a few have done so in this area.
Many instead have turned a cold shoulder to those seeking to express themselves.
In this context, the promise of American democracy is being thwarted. Given
the tremendous development of the modem American mall in recent years, three major
changes would help fulfill the promise of the First Amendment in this area. First, the
United States Supreme Court should reconsider its approach to the First Amendment.
Toward that end, in these pages I suggest a new theory of the First Amendment, one
which exalts the value of the collective democracy run by informed individuals
through their individual words and collective voice. Second, the Court should
reexamine its decades-old precedent in this area in light of the facts today. Even under
the Court's First Amendment framework, with the new facts, the result would change,
and malls would be opened for expressive activity. Third, the states should stand up
*     Associate Professor, Seton Hall University School of Law. B.A. 1986, J.D.
1992, Yale University. First and foremost, I thank Owen Fiss who has inspired, cajoled, and
critiqued me and my work patiently and tirelessly. Many thanks also go to Michelle Adams,
Amy Alexander, Frank Askin, Charles Sullivan, Peter Watson, and John Wefing. I sincerely
appreciate the research assistance I have received from Priscilla Kugel, Merric Polloway, and
Dena Reger.

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