Question

The question in this section is based on the passage. The question is to be answered on the basis of what is stated or implied in the passage.

The Constitution of the United States protects both property rights and freedom of speech. At times these rights conflict. Resolution then requires a determination as to the type of property involved. If the property is private and not open to the general public, the owner may absolutely deny the exercise of the right of free speech thereon. On the other hand, if public land is at issue, the First Amendment protections of expression are applicable. However, the exercise of free speech thereon is not absolute. Rather it is necessary to determine the appropriateness of the forum. This requires that consideration be given to a number of factors including character and normal use of the property, the extent to which it is open to the public, and the number and types of persons who frequent it. If the forum is clearly public or clearly private, the resolution of the greater rights is relatively straight forward. 

In the area of quasi-public property, balancing these rights has produced a dilemma. This is the situation when a private owner permits the general public to use his property. When persons seek to use the land for passing out handbills or picketing, how is a conflict between property rights and freedom of expression resolved? 

The precept that a private property owner surrenders his rights in proportion to the extent to which he opens up his property to the public is not new. In 1675, Lord Chief Justice Hale wrote that when private property is “affected with a public interest, it ceases to be private.” Throughout the development of AngloAmerican law, the individual has never possessed absolute dominion over property. Land becomes clothed with a public interest when the owner devotes his property to a use in which the public has an interest. In support of this position the chairman of the board of the Wilde Lake Shopping Centre in Columbia, Maryland said: 

The only real purpose and justification of any of these centres are to serve the people in the area -not the merchants, not the developers, not the architects. The success or failure of a regional shopping centre will be measured by what it does for the people it seeks to serve.

These doctrines should be applied when accommodation must be made between a shopping centre owner’s private property rights and the public’s right to free expression. It is hoped that when the Court is asked to balance these conflicting rights it will keep in mind what Justice Black said in 1945: “When we balance the constitutional rights of owners of property against those of the people to enjoy (First Amendment) freedom(s) ......... we remain mindful of the fact that the latter occupy a preferred position.”

In which one of the following cases would the owner of the property probably be most free to restrict the freedom of speech? 

Options

• an amusement park attended by five million people each year owned by a multinational company.

• a small grocery shopping mall owned by a husband and wife

• an enclosed shopping mall owned by a single woman

• an eight-unit residential apartment building owned by a large real estate company

Answer 1

an eight-unit residential apartment building owned by a large real estate company