NJ mall owners lose battle over leaflets.

To the chagrin of malls owners, New Jersey's top court recently ruled that political and social groups may leaflet in regional shopping malls.

The action was brought by a Rutgers College professor who took a field trip to the malls with his students and purposefully attempted to hand out leaflets. After they were turned away, they sued, arguing the New Jersey State constitution permitted their actions.

In California, a settlement reached after the Pruneyard case in 1980 opened that state's malls to leafleting. The malls have made agreements to allow leafleting, for instance, at certain times and certain days upon 72 hours notice, so they would have time to obtain an injunction.

According to a spokesperson for the International Council of Shopping Centers, Mark J. Schoifet, one particular agreement also allowed for no leafleting at all during 25 peak shopping days.

The issue is also under discussion in Wisconsin as well as other states, said Ronald B. Bruder, president of the New York City-based Brookhill Group, which owns and manages primarily shopping centers around the country.

He believes the New Jersey decision is wrong because it usurps the owner's right to private property. Contrary to the finding by the New Jersey court that shopping malls have replaced Main Street as centers of commercial and social activity, Bruder observed, "It's not a neighborhood space and it's not a community center."

Airports, where courts have ruled certain leafleting is allowed, are owned by the government, Bruder noted, "but a shopping center is a private domain. As long as its privately-owned, privately-heated and privately-secured, it's not public. One of the problems is that people hand out pieces of paper and they get dropped all over the shopping mall."

Schoifet said 94 percent of the malls allow some kind of community activity, including certain fund-raising activities by local groups. "What the Chief Justices of the New Jersey Supreme Court are saying is they have to let everyone in - the animal rights activists, pro-life, pro--choice. There is nothing to stop anti-fur protesters from picketing the fur shops."

Additionally, since the California decision, research in those malls where leafleting takes place has pinpointed economic damage, something unavailable to the plaintiffs at that time. "One survey showed they would avoid a wing of the mall where people were leafleting," said Schoifet.

Currently, lawyers for the nearly one dozen New Jersey regional malls that would be directly affected by the ruling have asked for a rehearing on the split decision. At 4-3 it is hardly unanimous, said attorney Joseph Aviv, a partner with the Michigan law firm, Miro Miro & Weiner, who represents the Taubman mall at Short Hills and JMB Realty's Riverside Square.

Aviv agrees with the dissenters. "I do not think it's a correct application of the prior law in New Jersey and the court took judicial notice of facts that were simply not accurate," he said.

If the court does not agree to a rehearing, Aviv and his clients will have to decide whether or not to seek certiorari by the U.S. Supreme Court.

One of the arguments that might be made, said Schoifet, turns on the malls right to remain silent. "If someone leaflets, the malls might feel obligated to respond to the message and to explain why it doesn't represent their viewpoint," Schoifet explained.

Aviv said the New Jersey decision would not apply to other states, because it is dependent on the wording in the state's constitution. "It's a decision contrary to the law in most states," he added. Nevertheless, the move towards leafleting is something that regional mall owners must keep a wary eye on.