Memo of Opposition to New York Open Access Proposal

MEMORANDUM IN OPPOSITION

A.4163-a (Englebright)
Assembly Governmental Operations


RE: AN ACT to amend the Civil Rights Law, in relation to freedom of speech and petition in certain shopping centers and shopping malls.

This bill would subject owners of both large open-air shopping centers and regional enclosed shopping malls with onerous new provisions designed to permit demonstrations, marches, sit-ins, leafleting and other so-called expressions of free speech in the common areas of their facilities.

The International Council of Shopping Centers, the trade association of the shopping center industry, STRONGLY OPPOSES this bill. This legislation is unnecessary, unwanted, and constitutes a major appropriation of property without compensation. Shopping centers and malls are not opposed to public access, rather they are opposed to this type of forced access.

There are more than 1,800 shopping centers in New York, generating 13.4 million adult visits per month. In this competitive environment, shopping center and mall owners are extremely responsive to the needs and wishes of their tenants, and ultimately their customers, the local consumers. Extensive research and substantial investment has been made to facilitate the needs of shoppers. It has been the industry’s experience that people come to shopping centers and malls to shop, not to be hassled by others who wish to impose their point of view. Each privately owned mall should be free to adopt an access policy that it considers in the best interest of its merchants, the desires of the customers and the needs of the community.

Shopping centers and malls are major drivers of New York’s economy. In 2002, the industry produced $1.59 billion in sales tax revenue on sales of $51.7 billion. The industry employed 397,600 people directly, with an additional 1,100 employed by the construction companies that build and improve our facilities. Our activities and investments are designed to maximize the sales of our retailers and thus the sales taxes paid to New York and our host communities. The disruptions that will be caused by demonstrations devoted to 25% of our common space, especially during holiday and seasonal periods when mall traffic is greatest, will drive sales elsewhere – to the largely untaxed Internet or out-of-state.

This bill would require shopping malls to allow access to all groups, no matter how controversial or how offensive. People will not come out to centers or malls where they believe they, or especially their children, will be subjected to harassment or offensive and highly controversial materials. This legislation would require a mall owner to permit the following to occur in a shopping mall:

1. Demonstrations by the Ku-Klux Klan and the Nazi party;
2. Anti-nuclear or anti-war demonstrations;
3. Burning of draft card demonstrations;
4. Nudity;
5. Slurs against religions;
6. Anti and pro-abortion demonstrations;
7. Public desecration of the American flag;
8. Profanity on banners, placards or leaflets.

While the bill purports to permit mall owners to impose reasonable regulations, they are not workable. Police will not enforce private rules. By the time a prohibiting court order is obtained, the damage has been done. And who will pay for the damage? The bill does nothing to relieve shopping centers and mall owners of the increased liability risk these demonstrations will clearly bring. And while this bill further purports to ban obscene matter, even the United States Supreme Court has failed to adequately define what is or is not obscene. The experience in California, which enacted similar legislation, is illustrative. The malls have been wracked with constant litigation over details of its regulations. These problems should not be imposed on New York shopping malls, their tenants and their customers.

This bill is unneeded because there are ample opportunities in all parts of New York State for distributing leaflets, demonstrating and conducting similar activities. Further, most malls in New York State permit and encourage a wide variety of public activities that benefit local groups in their respective host communities. Again, our members are not opposed to appropriate public access. They are opposed to forced access.

In these times of economic stress and increased security risks the legislature should not place in jeopardy the health of one of its major economic drivers.

For the foregoing reasons, and on behalf of our client, the International Council of Shopping Centers, we respectfully urge this bill BE DEFEATED.

Respectfully submitted,

International Council of Shopping Centers

April 7, 2003