It is well settled in Connecticut that there is no right under the First Amendment to the United States Constitution for a person to use a privately owned shopping center as a forum to communicate without the permission of the property owner. A state, however, may adopt greater protection for free expression on private property, so long as such protection does not conflict with any federally protected property right of the owners of private shopping centers.
Defendants mall owner and manager denied plaintiff union access to the common areas of a shopping mall to distribute literature and to address mall patrons regarding employees' legal rights. Plaintiff claimed that defendants violated its right to freedom of speech under Conn. Const. art. I,, §§ 4 and 5, and its right to freedom of assembly under Conn. Const. art. I, § 14. Relying on the decision in Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984), the trial court determined that the mall was a private actor, and therefore, not subject to the guarantees afforded by the state constitution. The state supreme court affirmed.
Could defendant owner and manager of a shopping mall deny plaintiff union the access to common areas of the shopping mall to distribute literature and address mall patrons regarding employees’ legal rights?
Defendants in the present case could not be deemed a state actor. To conclude that the minimal state involvement present in the instant case was sufficient to constitute state action, the court would have to disregard much of the reasoning in Cologne that differentiated between state and private action, essentially eviscerated Cologne's conclusion that the public use of a private shopping mall did not transform the mall owners' refusal to allow political speech within the mall into state action, and depart drastically from the case law, relying in part on Cologne, in the overwhelming majority of other jurisdictions.