Provides that persons shall have the right to exercise the freedom of speech and the freedom to petition in shopping malls subject to reasonable time, place and manner regulations; requires every shopping center to prepare and publish an accommodation plan stating its policy with respect to the public's exercise of first amendment rights; provides that no person need post a bond or make payment for exercising the right of freedom of speech or freedom to petition; provides that shopping malls must make display space available for the posting of announcements, public service messages, etc.
STATE OF NEW YORK
________________________________________________________________________
3753
2011-2012 Regular Sessions
IN ASSEMBLY
January 27, 2011
___________
Introduced by M. of A. ENGLEBRIGHT -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the civil rights law, in relation to freedom of speech
and petition in certain shopping centers and shopping malls
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and declaration. The legislature
2 hereby finds and declares that the ideals and aspirations of American
3 democracy are enhanced by preserving and expanding the rights of freedom
4 of speech and petition guaranteed by the United States and New York
5 constitutions. However, modern patterns of settlement and modern
6 retailing practices have had the unintended effect of diminishing the
7 opportunity to exercise such rights. Traditional forums for such speech
8 -- public streets and town squares -- have been replaced by large shop-
9 ping centers and malls.
10 The legislature further finds that permitting citizens to exercise
11 their first amendment rights has benefits for society as a whole since
12 it encourages debate on public policy issues and helps produce an
13 informed citizenry. It is also important that citizens have access to
14 information from a variety of sources concerning pressing social prob-
15 lems. For example, the opportunity for young people to gain information
16 on such issues as drug and alcohol abuse and teenage pregnancy at a
17 place they frequent, such as a shopping mall, can be an important part
18 of society's efforts to address these problems.
19 Accordingly, the legislature hereby finds and declares that, as a
20 matter of public policy, owners of shopping centers should be encour-
21 aged, and in some instances required, to permit the exercise of first
22 amendment activities on their premises. However, in recognition of the
23 commercial interests and reasonable investment-backed expectations of
24 owners of shopping malls and their lessees, the legislature further
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07456-01-1
A. 3753 2
1 finds that the exercise of first amendment rights should be subject to
2 reasonable time, place and manner restrictions.
3 § 2. The civil rights law is amended by adding a new section 16 to
4 read as follows:
5 § 16. Exercise of the right of free speech and the right to petition
6 in shopping centers. 1. Definitions. For purposes of this section, the
7 following terms shall have the following meanings:
8 (a) "Common area" means that part of a shopping center or shopping
9 mall that consists of entrances, exits, passageways, sidewalks, malls,
10 concourses and parking lots providing access to or connecting the estab-
11 lishments of the shopping center or shopping mall and which do not
12 constitute part of the gross leasable area of such shopping center or
13 shopping mall.
14 (b) "Establishment" means a store, bank, restaurant, theater, arcade
15 or other similar type facility.
16 (c) "Gross leasable area" means the total square foot area of all
17 establishments of a shopping center or shopping mall leased or offered
18 for lease, regardless of whether vacant or not, the location of such
19 area within the shopping center or the duration of the lease.
20 (d) "Management" means any person, partnership, limited liability
21 company, corporation, joint venture or other entity managing, owning,
22 operating or otherwise controlling the administration of a shopping
23 center or shopping mall.
24 (e) "Shopping center" means a privately-owned complex, enclosed or
25 otherwise, consisting of at least ten establishments in which merchan-
26 dise is sold at retail, which grants access to the general public and
27 which, including common areas, has at least one hundred thousand square
28 feet of gross leasable area.
29 (f) "Shopping mall" means a privately-owned, enclosed complex consist-
30 ing of at least twenty establishments, which grants access to the gener-
31 al public and which, including common areas, has at least two hundred
32 fifty thousand square feet of gross leasable area.
33 2. Shopping center accommodation plans. (a) The management of every
34 shopping center shall prepare an accommodation plan setting forth the
35 shopping center's policy with regard to the exercise of the right of
36 free speech and the right to petition. Where the exercise of the right
37 of free speech and the right to petition is permitted by any person,
38 such exercise by any other person shall also be permitted. To the extent
39 the management of a shopping center does not permit the exercise of such
40 rights, the plan shall set forth the reasonable reasons for such policy.
41 (b) If the management of a shopping center establishes an accommo-
42 dation plan that permits the exercise of the right of free speech and
43 the right to petition, the management of the shopping center may estab-
44 lish reasonable time, place and manner regulations consistent with the
45 provisions of paragraph (b) of subdivision three of this section.
46 (c) The management of each shopping center shall post a copy of its
47 accommodation plan on the display space required pursuant to subdivision
48 four of this section. Upon each request therefor, the management shall
49 make available a copy of such accommodation plan free of charge.
50 3. Access to shopping malls. (a) Subject to the provisions of this
51 subdivision, every person shall have the right of free speech and free
52 expression, including the right to petition, in the common area of a
53 shopping mall, provided that such expressive activities do not interfere
54 with the free flow of pedestrian traffic. Such expressive activities
55 shall include the right to wear clothing, buttons, arm bands and other
A. 3753 3
1 forms of symbolic expression that convey an ideological or political
2 point of view.
3 (b) The management of a shopping mall may establish reasonable time,
4 place and manner regulations governing the use of a shopping mall by
5 persons wishing to exercise the right of free speech and free
6 expression, including the right to petition. Such regulations may
7 include, but are not limited to: (i) requiring a prior application for
8 organized gatherings of twenty or more persons, provided that there
9 shall be an expeditious review of every such application; (ii) designat-
10 ing certain portions of the common area of the mall to be used for the
11 exercise of such rights, provided, however, that the management of a
12 shopping mall shall designate for such use at least twenty-five percent
13 of such common area; (iii) limiting the use of mall facilities if the
14 exercise of such rights would interfere with the free flow of pedestrian
15 traffic; (iv) limiting the number of persons participating in the exer-
16 cise of such activities; (v) restrictions on the on-site solicitation of
17 money; (vi) restrictions on littering, fighting and making obscene
18 gestures; and (vii) restrictions on the use of lights, loudspeakers,
19 cameras, musical instruments, television sets or radios. Such regu-
20 lations shall not discriminate based on the political or ideological
21 content of the speech or expressive activities nor shall they be applied
22 to promote or undermine a particular political or ideological point of
23 view.
24 (c) No person shall be required to post a bond or make any payment for
25 the exercise of the right of freedom of speech or the right of freedom
26 to petition in the common area of a shopping mall; provided, however,
27 that the management of a shopping mall may require persons to clean up
28 litter or other debris resulting from the use of the shopping mall and
29 may deny future access or require a bond if the person using the mall
30 has demonstrated a failure to clean up litter or debris in connection
31 with a prior use of the shopping mall.
32 4. Space for posting. The management of every shopping mall and shop-
33 ping center shall make available, pursuant to regulations adopted by
34 it, display space readily accessible to pedestrian traffic in the shop-
35 ping mall or shopping center for the posting of announcements, public
36 service messages, proclamations, pamphlets and other such material. The
37 management of a shopping center or shopping mall shall not prohibit the
38 posting of material on the basis of content except where such prohibi-
39 tion is otherwise consistent with constitutional principles relating to
40 freedom of speech.
41 § 3. Severability. If any clause, sentence, paragraph, section or part
42 of this act shall be adjudged by any court of competent jurisdiction to
43 be invalid, such judgment shall not affect, impair or invalidate the
44 remainder thereof, but shall be confined in its operation to the clause,
45 sentence, paragraph, section or part thereof directly involved in the
46 controversy in which such judgment shall have been rendered.
47 § 4. This act shall take effect on the first of January next succeed-
48 ing the date on which it shall have become a law.
