American Constitutionalism in Historical Perspective (packet)

Shopping Center Cases –started in Logan Valley but qualified in Lloyd and finally overruled w/ Hudgens

1. 
   Amalgamated Food v. Logan Valley Plaza, 1968: Orders mall to allow demonstrations on its private property b/c finds it operates as a public forum. Role of malls in privatized suburbs—one of the few places where ppl spend time and can mingle w/ others. Open to the public & consistent w/ purposes of 1^st A: Mall location related to purpose of protest b/c picketing gds & services
   
2. 
   Lloyd Corp. v. Tanner, 1972: court agrees with mall, disallows antiwar picketing. Finds it is unrelated to the purposes of the forum. Marshall dissents, cites Logan, this was the best forum for distribution of leaflets. Subject matter distinction would be intolerable in any other public forum.
   
3. 
   Hudgens v. NLRB, 1976: overruled Logan (shopping malls no longer public forums), though some state constitutional law has found that malls are public forums (NY and CA).
   
4. 
   Pruneyard Shopping Center v. Robins, 1980: allowed state to force access to shopping mall, argued that it was clear that the mall was not endorsing speech. Highest state ct had interpreted the state constitution as guaranteeing speakers access to a privately owned shopping. Thus high school students could solicit signatures for a petition protesting a UN resolution against Zionism on shopping center’s grounds. Views expressed w/n be identified w/ the owner. Also owner shouldn’t be forced to allow views he finds morally repugnant and in this case he owner d/n object to content
   

Media Access: p.1378 Worry that classical free speech doctrine i/n resulting in diversity of speech so compel access of minority voices. Radio/TV accessible to more ppl and impt in democratization of speech. More literate societies are less likely to be fascist. But court has been hostile to access principles, concerned with state interference in speech. Note that the court is skeptical about new technology, don’t want to censor new media too early since they could be democratically empowering:

1. 
   US:
   
   1. 
      Radio/TV is impt, d/n want it to be taken over by state, so we made it a commercial medium funded by advertising. Thin regulatory overlay (FCC) and funded thru ad time. It decentralizes what should be published and makes it market-sensitive--solved state censorship prob.
      
   2. 
      Probs: advertisers want program to be inoffensive to dominant majority in order to sell more of your goods. Tendency to appeal to majority and freeze out minority views, rendering TV unable to seriously debate of impt issues or counter-majoritarian art. When allow consumer preferences to reign, it’s aimed at ppl who spend more $.
      
2. 
   British:
   
   1. 
      Radio/TV too impt to be remitted to commercial interests. Has indep agency w/ distinguished tradition of independence from govt (BBC). Funded by user fees from when buy TVs/radios (tax). Theory of independent journalism and innovative programming, more counter-majoritarian and exposes gov’t policies for criticism. Now is more commercial & have cable/internet.
      
   2. 
      Probs: BBC may be too critical. Who determines who is on the BBC? May be too elitist. This system may go awry in countries where it can amount to govt control.
      
3. 
   Miami Herald v. Tornillo, 1974: struck down Florida law requiring papers to provide political candidates equal space in the paper to reply to criticism. C/n permit this b/c will have a chilling effect on newspapers, they w/n print controversial speech b/c d/n want to be compelled to speak later.
   
4. 
   Baron law review (p. 1493):
   
   1. 
      Classic view: (1) 1^st A applies to state interference, (2) no state interference in publishing rts, (3) regulatory power only when monopoly over resources.
      
   2. 
      Baron’s view:
      
      1. 
         Rethink Mill doctrine and apply 1st to monopoly power of private parties. Fear that popular media consolidating, less diversity, may use access principles to increase diversity by providing a right of reply or access. Turning media into public forum.
         
      2. 
         Broad tendency of private mass media to appeal to lowest common denominator so d/n get minority views including newspapers. So should have access obligation to remedy above probs and in Tornillo, state law allowing candidate rt of reply, should be permitted. Otherwise would not allow minority views.
         
   3. 
      Baron’s argument is rejected by Brennan. Should never be compelled to say something d/n believe. Afraid will have chilling effect on newspaper b/c would avoid controversy in order to avoid access obligation. Need to have editorial power.