July 28, 2004

NEWARK, NJ — The American Civil Liberties Union of New Jersey announced today that a State Superior Court Judge has struck down as unconstitutional regulations restricting the distribution of literature and the gathering of political petitions at the Mall at Mill Creek in Secaucus.

The decision came in a case brought by the Rutgers Law School Constitutional Litigation Clinic and the ACLU of New Jersey on behalf of the Green Party of New Jersey, challenging rules adopted by the Mall at Mill Creek in Secaucus, New Jersey.

In his ruling, Judge Martin L. Greenberg rejected the mall's requirement that any group wishing to leaflet or collect signatures must obtain a million dollar liability insurance policy and execute an agreement to indemnify the mall for any lawsuits resulting from their activity. Such a requirement, he said, violated the spirit of a related 1996 Supreme Court decision.

The state court's opinion, which was released late Friday afternoon, is an extension of a 1996 decision by the New Jersey Supreme Court that regional shopping malls are public fora under state law and must accommodate ideological expression by political and non-profit groups. The 1996 case, New Jersey Coalition Against the War in the Middle East v. J.M.B. Realty, was also brought by the Rutgers clinic and the ACLU of New Jersey. The Mall at Mill Creek, which is owned by Hartz Mountain Industries, was one of the ten defendants in the earlier case.

Judge Greenberg held that "as a practical matter, the insurance and hold harmless requirements act as a de facto ban on free speech because these regulations are cost prohibitive and difficult to obtain due to political beliefs." He added that the regulations "deny groups the ability to follow society to shopping centers and therefore the right to exercise free speech" at such public gathering places. He further held that the rule restricting each organization to "one day or a few consecutive days per year" was unreasonable.

Professor Frank Askin of the Rutgers Constitutional Litigation Clinic, who represented the plaintiffs, said he and his students were pleased that they had been successful in further extending the right of free speech in New Jersey.

"Our clinic has been working for the past fifteen years to widen the public forum where citizens of our state can come together and communicate on issues of public importance," he said. "Once again, a court has vindicated our argument that places of public congregation, whether publicly or privately owned, must accommodate the constitutional rights of speech and petition."

Judge Greenberg also declared unconstitutional a mall regulation that no group could be licensed to engage in expressive activity more often than once a year for "several consecutive days."

The ACLU plans to circulate Judge Greenberg's opinion to other regional shopping malls in New Jersey to ensure that they are aware of the limited scope of permissible regulation of free speech.

The case before Judge Greenberg was captioned Green Party v. Hartz Mountain Industries, Docket Number C-137-96 in the Superior Court of New Jersey, Chancery Division, Hudson County