The Peaceful Public Square

As colleges descend into violent chaos, it is worth remembering that one of the most consequential “protests” about Mideast policy was entirely peaceful. It involved synagogue students who opposed the U.N.’s 1975 anti-Zionism resolution. The case reached the California Supreme Court, and then the U.S. Supreme Court, whose decision protecting their speech will shape its decision next month regarding social-media regulation.

Sunday at the mall with Michael

One morning in 1975, students from San Jose’s Temple Emanu-El, including the rabbi’s son Michael Robins, went to Santa Clara’s Pruneyard mall and started collecting signatures for a petition they would send to President Gerald Ford. Their activity was “peaceful and apparently well-received by Pruneyard patrons,” as judicial opinions would observe, but a guard soon told them to stop.

They reported back the Temple’s Board, whose president, Philip Hammer, was its only attorney. Though Hammer practiced family law, he brought a constitutional challenge with the help of a first-year associate, Ann Miller Ravel, who, decades later, would chair the Federal Election Commission.    

It would be Ravel’s first trial, and Hammer’s first — and only — Supreme Court appearance. But their inexperience became an asset. 

Speech and suburbia

As the U.S. Supreme Court had held there is no First Amendment right to speak in a privately-owned mall, a constitutional objection seemed fruitless. So Hammer focused more on sociology: He argued suburbanization had shrunk the “public square” where people could exchange ideas, with potentially calamitous consequences for democratic self-government. “[W]here there are no adequate public forums, the shopping center must take on the role of the defunct downtown, so that the extremely important need in our society for the dissemination of ideas by individual citizens does not become impossible.” 

A comparable argument had prevailed in 1946, when the Supreme Court ruled for a woman who sought to distribute religious pamphlets on the sidewalk of a company-owned town. As it was technically private property, she had no First Amendment right to speak. But the court held that self-government demanded an exchange of ideas, regardless of property title: “Whether a corporation or a municipality owns . . . the town, the public in either case has an identical interest in the functioning of the community [so] the channels of communication remain free.”

The mall functioned as a public square in the 1970s and 80s. Victor Gruen, the Jewish architect who had escaped Austria in 1938 (when a friend dressed as a Nazi drove him to the airport), envisioned this role when he designed Minneapolis’ Southdale mall, which opened in 1956 as the nation’s first fully-enclosed shopping center. Malls should “fill the vacuum created by the absence of social, cultural, and civic crystallization points in our vast suburban areas… Humans want to mingle with other humans.” 

The litigation

The lower court, bound by precedent, rejected the students’ claim, but its reasoning that neither the federal nor California constitution protected the petitioning was a revelation. Hammer had not cited the state constitution, but he would eventually ask the California Supreme Court to rely on this “independent state ground.”

In 1979, it agreed. It recognized the federal constitution did not protect the right to speak at the mall, but held the broader California Constitution did.

Now before the nation’s highest court, the mall revised its arguments. It asserted not just a Fifth Amendment property right but also a First Amendment speech right to exclude unwanted petitioners. Citing precedents holding students could not be forced to salute the flag, and drivers could not be forced to drive with “Live Free or Die” license plates, the owner contended California had unfairly compelled him to speak: If he “could not be forced to sign a petition condemning Syria,” likewise “he cannot be required to devote his private property” to signature-gathering efforts.

Hammer’s oral presentation again relied on sociology, citing California’s car culture. “The people in … California are rarely found on public property. They are in their homes and workplaces, their automobiles and their privately owned shopping centers. They are rarely on the public streets.” A supporting brief from the American Jewish Congress and the Synagogue Council of America deemed shopping centers the “modern equivalent of the Greek agora [so] First Amendment guarantees must be afforded these modern-day public forums.”

The high court confirmed there was no First Amendment right to speak in the mall, but the mall had no affirmative right to exclude the speech, so California could go beyond the First Amendment in guaranteeing speaker access to privately-owned property. No justice dissented. In his only trip to the U.S. Supreme Court, Phil Hammer won 9-0. 

The new public square

The public square is no longer the shopping mall; there were 25,000 malls in the 1980s and barely 700 today. As one prescient law student observed in 1980, “a totally new public forum may arise which cannot be pinpointed precisely today …  but one is nevertheless likely to appear within the next few decades.” Sure enough, the primary marketplace of both goods and ideas is now online. 

Concerned about internet censorship, Florida and Texas enacted laws to ensure social-media users could present their ideas without viewpoint discrimination. The Pruneyard cases were the model; just as California could protect (nondisruptive) speakers’ access to shopping centers, these statutes protect speakers’ access to Facebook, Twitter, and YouTube. One federal appellate court upheld Texas’ law but another struck down Florida’s, setting up Supreme Court review.

The platforms contend that, unlike malls, their business is spreading ideas, so, like newspapers, they deserve “editorial discretion” about which to present. But while many assailed corporate speech rights in the Citizens United case, censorship is worse. So long as corporate advertising merely adds ideas to debate, voters remain the ultimate decisionmakers. But when corporations subtract them from online exchanges, it extinguishes debate altogether.

Moreover, the platforms disavowed such “editorial discretion” in last year’s Twitter, Inc. v. Taamneh case. Sued for enabling terrorism that killed plaintiffs’ relatives, platforms insisted ISIS’ posted content was not the platforms’ speech (because newspapers are liable for what they publish). The Supreme Court agreed and found platforms “transmit most content without inspecting it” and thus function not like newspapers but phone companies — which enjoy immunity for speech they transmit.

A pivotal question is whether, as the mall asserted, hosting unwanted speech on one’s property infringes one’s conscience as much as having to post it oneself. The “Live Free or Die” case held states could not conscript drivers to “use their private property as a ‘mobile billboard’ for the State’s ideological message,” which, like forcing students to salute the flag, could violate their conscience. But like Pruneyard, the online laws do not enable the state’s ideological message but the user’s own.

Perhaps the best guide for balancing the public interest in exchanging ideas with the private interest in conscience was the Supreme Court’s 2000 Southworth case. Students objected to a University of Wisconsin program that taxed them to pay for speech on controversial topics, and the Court of Appeal found such compulsory support violated dissenters’ consciences. But the Supreme Court unanimously reversed. So long as the funding was viewpoint-neutral, it did not subsidize any particular idea but a forum for their exchange—which benefited everyone.

Even if the internet resembles malls so that Pruneyard supports the current provisions, there are important differences. When the public square was physical, whether sidewalk or mall, speakers tried to persuade their neighbors, and developed the capacity for civil discourse and mutual understanding. But there is less incentive for civility in anonymous online interactions. And the very viewpoint discrimination that the new laws seek to remedy has created digital echo chambers, whose users never hear competing positions and thus believe the worst about their opponents. 

What will really restore civility is not regulating the internet but spending less time on it. Victor Gruen was right; humans need to mingle with other humans.

Mitchell Keiter is the author of Forum for the Common Man: How Robins v. Pruneyard Integrated the Marketplace of Ideas with the Marketplace of Goods, which will be published next month in the California Supreme Court Historical Society Review. He will also lead a webinar on May 29 concerning Free Speech and the Internet: Will the U.S. Supreme Court take California’s “Pruneyard Principle” nationwide? See https://my.cschs.org/civicrm/event/info?reset=1&id=10