It’s a case that raises questions about free elections, private property rights, changing shopping patterns … and whether candidates can pester you for your signature at the supermarket.
Allied on one side are real estate and retail groups citing private property rights. On the other, civil libertarians and free speech advocates.
"We think there are important interests related to a free society and the functioning of a democracy. How much does this really intrude on private property ownership?" said Sarah Wunsch, deputy legal director at the ACLU of Massachusetts.
In 2012, candidate Steven Glovsky was asked to leave a Roche Bros. supermarket in Westwood, where he was planning to gather signatures in a run for governor’s council. Glovsky filed a lawsuit against the Wellesley-based chain, claiming civil rights violations. The case has made its way to the Massachusetts Supreme Judicial Court.
The high court’s eventual ruling could clarify the rights of groups to conduct political activity in shopping centers, and what types of retail properties are affected. It’s been more than a generation since the state’s courts have ruled on the matter, long before new development styles like big-box center and lifestyle centers emerged on the retail scene.
Prior rulings have protected the right to conduct political activity in private shopping malls, but the current case asks justices to rule on a gray area – that of the grocery-anchored shopping centers that are the staple of suburban errands.
Two decades-old cases – one federal and one state – provide the primary guidance for justices as they consider the issue.
In 1980, the U.S. Supreme Court ruled that states can require more protections for free speech on private property than is provided under the U.S. Constitution. The ruling stemmed from a case in which a group of California high schoolers were evicted from a local shopping center, where they were collecting signatures protesting a United Nations resolution against Zionism. The court ruled that free speech on private property such as shopping centers is protected, subject to regulations by the property owner.
The Massachusetts test case emerged in the early 1980s when third-party Congressional candidate Donald Batchelder sought to collect nominating signatures at the North Shore Mall in Peabody.
Significantly, the court didn’t cite Batchelder’s right to free speech. Instead, it said that the mall had interfered with Article 9 of the Massachusetts Constitution, which protects the fairness of the electoral process. Batchelder had argued that collecting signatures door-to-door or in downtown areas was less effective.
The SJC ruled in favor of Batchelder, calling "personal contact" a key element of soliciting signatures. It cited the regional shopping mall’s role as a regional gathering spot and calling it "the most favorable site in the Sixth Congressional District to gather signatures of voters."
How Far Do You Go?
The key issue for the court now is how broadly to extend those rights to various types of commercial properties, said Michael Meltsner, a law professor at Northeastern University.
"What we’re really dealing with here is an extremely place-sensitive situation," Meltsner said. "The question is, how far do you go? Everyone would agree if you were dealing with a mom-and-pop store or a private residence, you wouldn’t go that far."
Roche Bros.’ attorneys have taken the stance that strip malls like the 5-acre Westwood property are no more a downtown today than they were in 1983, and that courts around the nation have ruled against such an interpretation many times in past decades.
But civil libertarians say the 1980s ruling fail to take into account the emergence of big-box stores as public gathering hubs in recent years.
"When you think of Wal-Mart stores, they’re huge, and much closer in nature to the North Shore Mall," said the ACLU’s Wunsch. "The court needs to think about the standalone stores that are so huge they are like the old downtowns. This applies to interests related to a free society and the functioning of a democracy."
The 1983 Batchelder case divided the SJC in a 4-3 decision. The majority was highly specific about why the North Shore Mall had elements of a public gathering space: It contained a Roman Catholic chapel, and hosted community events unrelated to its commercial purposes, justices noted.
That’s a different category of property than a grocery-oriented shopping center, said Ed Hershfield, an attorney at Brown Rudnick LLP in Boston.
"My take is that the Burlington Mall or the South Shore Plaza (in Braintree) would be covered," Hershfield said. "But if I had to guess, I just don’t see the court saying that any shopping center where people are gathering in and of itself is a place somebody needs to have access to."
Email: sadams@thewarrengroup.com
