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has never been granted, to hold their meetings in other private places,
merely because the owner has admitted the public to them for other
limited purposes. Even though we have reached the point where this
Court is required to force private owners to open their property for the
practice there of religious activities or propaganda distasteful to the
owner, because of the public interest in freedom of speech and religion,
there is no need for the application of such a doctrine here. Appellant
* * * was free to engage in such practices on the public highways, without
becoming a trespasser on the company’s property.
I
* * * [T]he Court’s analysis * * * leaves the government with almost
unlimited authority to restrict speech on its property by doing nothing
more than articulating a non-speech-related purpose for the area, and it
leaves almost no scope for the development of new public forums absent
the rare approval of the government. The Court’s error lies in its conclu-
sion that the public-forum status of public property depends on the
government’s defined purpose for the property, or on an explicit decision
by the government to dedicate the property to expressive activity. In my
view, the inquiry must be an objective one, based on the actual, physical
characteristics and uses of the property.
SEC. B THE CITY AS PUBLIC OR PRIVATE 43
have extensive contact with other members of the public. Given that
private spaces of similar character are not subject to the dictates of the
First Amendment, see Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47
L.Ed.2d 196 (1976), it is critical that we preserve these areas for protected
speech. In my view, our public forum doctrine must recognize this reality,
and allow the creation of public forums which do not fit within the narrow
tradition of streets, sidewalks, and parks. * * * Under the proper circum-
stances I would accord public forum status to other forms of property,
regardless of its ancient or contemporary origins and whether or not it fits
within a narrow historic tradition. If the objective, physical characteristics
of the property at issue and the actual public access and uses which have
been permitted by the government indicate that expressive activity would
be appropriate and compatible with those uses, the property is a public
forum. The most important considerations in this analysis are whether the
property shares physical similarities with more traditional public forums,
whether the government has permitted or acquiesced in broad public
access to the property, and whether expressive activity would tend to
interfere in a significant way with the uses to which the government has
as a factual matter dedicated the property. In conducting the last inquiry,
courts must consider the consistency of those uses with expressive activi-
ties in general, rather than the specific sort of speech at issue in the case
before it; otherwise the analysis would be one not of classification but
rather of case-by-case balancing, and would provide little guidance to the
State regarding its discretion to regulate speech. Courts must also consid-
er the availability of reasonable time, place, and manner restrictions in
undertaking this compatibility analysis. The possibility of some theoretical
inconsistency between expressive activities and the property’s uses should
not bar a finding of a public forum, if those inconsistencies can be avoided
through simple and permitted regulations. * * *
Under this analysis, it is evident that the public spaces of the Port
Authority’s airports are public forums. First, the District Court made
detailed findings regarding the physical similarities between the Port
Authority’s airports and public streets. These findings show that the
public spaces in the airports are broad, public thoroughfares full of people
and lined with stores and other commercial activities. An airport corridor
is of course not a street, but that is not the proper inquiry. The question is
one of physical similarities, sufficient to suggest that the airport corridor
should be a public forum for the same reasons that streets and sidewalks
have been treated as public forums by the people who use them.
Second, the airport areas involved here are open to the public without
restriction. * * * [W]hile most people who come to the Port Authority’s
airports do so for a reason related to air travel, either because they are
passengers or because they are picking up or dropping off passengers, this
does not distinguish an airport from streets or sidewalks, which most
people use for travel. * * *
Third, and perhaps most important, it is apparent from the record,
and from the recent history of airports, that when adequate time, place,
SEC. B THE CITY AS PUBLIC OR PRIVATE 45
WILENTZ, C.J.
The question in this case is whether the defendant regional and
community shopping centers must permit leafletting on societal issues. We
hold that they must, subject to reasonable conditions set by them. Our
ruling is limited to leafletting at such centers, and it applies nowhere else.
It is based on our citizens’ right of free speech embodied in our State
Constitution. It follows the course we set in our decision in State v.
Schmid, 84 N.J. 535 (1980).
In Schmid we ruled that our State Constitution conferred on our
citizens an affirmative right of free speech that was protected not only
from governmental restraint—the extent of First Amendment protec-
tion—but from the restraint of private property owners as well. We noted
that those state constitutional protections are ‘‘available against unrea-
sonably restrictive or oppressive conduct on the part of private entities
that have otherwise assumed a constitutional obligation not to abridge the
individual exercise of such freedoms because of the public use of their
property.’’ And we set forth the standard to determine what public use
will give rise to that constitutional obligation. The standard takes into
account the normal use of the property, the extent and nature of the
public’s invitation to use it, and the purpose of the expressional activity in
relation to both its private and public use. This ‘‘multi-faceted’’ standard
determines whether private property owners ‘‘may be required to permit,
subject to suitable restrictions, the reasonable exercise by individuals of
the constitutional freedoms of speech and assembly.’’ That is to say, they
determine whether, taken together, the normal uses of the property, the
extent of the public’s invitation, and the purpose of free speech in relation
to the property’s use result in a suitability for free speech on the property
that on balance, is sufficiently compelling to warrant limiting the private
property owner’s right to exclude it, a suitability so compelling as to be
constitutionally required. * * *
46 PROBLEMS OF DECENTRALIZATION CH. 1
were visible from the common areas and expressed support for our armed
forces in the Persian Gulf, all of the centers claim to prohibit issue-
oriented speech and leafletting. * * *
Before reaching our discussion of the law, we must first examine the
background against which this question is raised. * * * Statistical evi-
dence tells the story of the growth of shopping malls. In 1950, privately-
owned shopping centers of any size numbered fewer than 100 across the
country. * * * By 1992, the number expanded to at least 1,835. * * * The
share of retail sales attributable to regional and super-regional malls has
demonstrated a similar pattern. Nationally, regional malls’ market share
of ‘‘shopper goods sales’’ was 13% in 1967 and 31% in 1979. In 1991 retail
sales in ‘‘shopping centers,’’ a category that includes not only regional
malls but other types of urban and suburban retail centers, ‘‘accounted for
over 56% of total retail sales in the United States, excluding sales by
automotive dealers and gasoline service stations.’’ * * * Thus, malls are
where the people can be found today. Indeed, 70% of the national adult
population shop at regional malls and do so an average of 3.9 times a
month, about once a week. Therefore, based on adult population data from
the 1990 census, more than four million people on average shop at our
regional shopping centers every week, assuming New Jersey follows this
national pattern.
The converse story, the decline of downtown business districts, is not
so easily documented by statistics. But for the purposes of this case, we do
not need statistics. This Court takes judicial notice of the fact that in
every major city of this state, over the past twenty years, there has been
not only a decline, but in many cases a disastrous decline. This Court
further takes judicial notice of the fact that this decline has been accompa-
nied and caused by the combination of the move of residents from the city
to the suburbs and the construction of shopping centers in those suburbs.
* * * That some downtown business districts have survived, and indeed
thrive, is also fact, demonstrated on the record before us. The overriding
fact, however, is that the movement from cities to the suburbs has
transformed New Jersey, as it has many states. The economic lifeblood
once found downtown has moved to suburban shopping centers, which
have substantially displaced the downtown business districts as the cen-
ters of commercial and social activity.
The defendants in this case cannot rebut this observation. Indeed, the
shopping center industry frequently boasts of the achievement. The indus-
try often refers to large malls as ‘‘ ‘the new downtowns.’ ’’ It correctly
asserts that ‘‘the shopping center is an integral part of the economic and
social fabric of America.’’ * * * Beyond that, one expert maintains that
shopping centers have ‘‘evolved beyond the strictly retail stage to become
a public square where people gather[ ]; it is often the only large contained
place in a suburb and it provides a place for exhibitions that no other
space can offer.’’ * * *
48 PROBLEMS OF DECENTRALIZATION CH. 1
facilities are for the exclusive use of Twin Rivers residents and their
invited guests,’’ and that the ‘‘general public is not invited’’ to use them.
The Twin Rivers Homeowners’ Association (Association) is a private
corporation that serves as trustee of the Trust. The Trust authorizes the
Association to make rules and regulations for the conduct of its members
while occupying the land owned or controlled by the Trust, to provide
services to its members, and to maintain the common lands and facilities
in Twin Rivers. The Association maintains the Trust’s private residential
roads, provides street lighting and snow removal, assigns parking spaces
in its parking lots, and collects rubbish in portions of Twin Rivers. By
acquiring property in Twin Rivers, the owner automatically becomes a
member of the Association and subject to its Articles of Incorporation
(Articles) and Bylaws.
The Articles authorize the Association to exercise all of the powers,
rights, and privileges provided to corporations organized under the New
Jersey Nonprofit Corporation Act, N.J.S.A. 15A:1–1 to–10. The Bylaws
additionally authorize the Association to adopt, publish, and enforce rules
governing the use of common areas and facilities. The Bylaws may be
amended by a majority of a quorum of members present in person or by
proxy at a regular or special meeting of the members.
The Association is governed by a Board of Directors (Board), whose
members are elected by all eligible voting members of the Association. The
Board is responsible for making and enforcing the rules, and for providing
services to its members that are financed through mandatory assessments
levied against residents pursuant to an annual budget adopted by the
Board.
Prior to the commencement of this litigation, various residents of
Twin Rivers formed a committee, known as the Committee for a Better
Twin Rivers (Committee), for the purpose of affecting the manner in
which Twin Rivers was governed. Eventually, the Committee and three
individual residents of Twin Rivers (collectively, plaintiffs) filed a nine-
count complaint against the Association and Scott Pohl, the president of
the Association, seeking to invalidate various rules and regulations. * * *
The thrust of the complaint was that the Association had effectively
replaced the role of the municipality in the lives of its residents, and
therefore, the Association’s internal rules and regulations should be
subject to the free speech and free association clauses of the New Jersey
Constitution. Although plaintiffs’ complaint consisted of nine counts, only
the first three counts are relevant to this appeal.
In count one of the complaint, plaintiffs sought to invalidate the
Association’s policy relating to the posting of signs. The Association’s sign
policy provided that residents may post a sign in any window of their
residence and outside in the flower beds so long as the sign was no more
than three feet from the residence. In essence, the policy limits signs to
one per lawn and one per window. The policy also forbids the posting of
signs on utility poles and natural features within the community. The
SEC. B THE CITY AS PUBLIC OR PRIVATE 53
stated purpose for the sign policy is to avoid the clutter of signs and to
preserve the aesthetic value of the common areas, as well as to allow for
lawn maintenance and leaf collection. Plaintiffs sought injunctive relief to
permit the posting of political signs on the property of community resi-
dents ‘‘and on common elements under reasonable regulation,’’ on the
basis that the current policy was unconstitutional.
In count two, plaintiffs complained of the Association’s policy in
respect of the use of its community room. In general, the community room
is available to residents of Twin Rivers, as well as clubs, organizations,
and committees approved by the Trust who want to rent the room for
parties or other events. When the complaint was filed, the community
room policy involved a two tiered rental charge system that differentiated
between the uses of the room. However, during the pendency of this
action, the Association amended the community room policy to eliminate
the tier system in favor of a uniform rental fee of $165 and a refundable
security deposit of $250. Additionally, a certificate of insurance naming
the Association as an insured was required. The rental fees were intended
to cover the costs associated with the maintenance of the room.
Plaintiffs asserted that the community room policy denied them equal
protection of the laws and unreasonably and unconstitutionally violated
their right to access the community room on a fair and equitable basis.
They sought temporary and permanent injunctions ‘‘to allow [p]laintiffs to
utilize the community room in the same manner as other similarly
situated entities.’’ Plaintiffs also urged that the rental fees were excessive
because they were not related to the actual rental costs incurred by the
Association.
In count three, plaintiffs alleged they were denied equal access to the
Association’s monthly newspaper, Twin Rivers Today (Today). The pur-
pose of the newspaper is to provide residents with news and information
that concerns the community. The editorial committee of Today selects
the content of the newspaper. The paper is delivered to all Twin Rivers
residents, but not to the general public. Plaintiffs sought a declaration
that all Twin Rivers residents should have ‘‘equal access’’ to the pages of
Today. Also, plaintiffs sought a permanent injunction enjoining the presi-
dent of the Board from using Today ‘‘as his own personal political
trumpet.’’ * * *
Our constitution affirmatively grants to individuals the rights of
speech and assembly. * * * This Court has long held that the rights of
speech and assembly cannot be curtailed by the government.* * * Federal
case law has evolved to require that there must be ‘‘state action’’ to
enforce constitutional rights against private entities. * * * Our jurispru-
dence has not been as confining. * * * We concluded in Schmid, supra,
that the rights of free speech and assembly under our constitution are not
only secure from interference by governmental or public bodies, but under
certain circumstances from the interference by the owner of private
property as well. Simply stated, we have not followed the approach of
54 PROBLEMS OF DECENTRALIZATION CH. 1
other jurisdictions to require some state action before the free speech and
assembly clauses under our constitution may be invoked.
With those general principles as a backdrop, we turn now to apply the
Schmid/Coalition test to the present matter. As noted, our constitution’s
free speech provision is ‘‘broader than practically all others in the nation.’’
Green Party [v. Hartz Mountain Indus.], 164 N.J. at 145, 752 A.2d 315.
Consequently, we have not followed the approach of other jurisdictions to
require some state action before the free speech and assembly clauses
under our constitution may be invoked. Even in the absence of state
action, we must determine whether the acts of a homeowners’ association
violated its members’ free speech and association rights in the setting of
this private housing association.
This case presents an additional complication: it involves restrictions
on conduct both on the private housing association’s property and on the
homeowners’ properties. However, ‘‘[i]t is the extent of the restriction,
and the circumstances of the restriction that are critical, not the identity
of the party restricting free speech.’’ Coalition, supra. We conclude that
the three-pronged test in Schmid and the general balancing of expression-
al rights and private property interests in Coalition are the appropriate
standards to decide this case. * * * The first Schmid factor requires that
we consider the nature, purposes, and primary use of the property. Twin
Rivers is a common interest community ‘‘in which the property is bur-
dened by servitudes requiring property owners to contribute to mainte-
nance of commonly held property or to pay dues or assessments to an
owners association that provides services or facilities to the community.’’
Restatement (Third)of Property:Servitudes § 6 (2000). We have recognized
that ‘‘[a] common-interest community is distinguishable from any other
form of real property ownership because ‘there is a commonality of
interest, an interdependence directly tied to the use, enjoyment, and
ownership of property.’ ’’ Fox v. Kings Grant Maint. Ass’n, 167 N.J. 208,
222, 770 A.2d 707 (2001).
The primary use of the property in Twin Rivers is residential. There
are privately owned businesses within the borders of Twin Rivers, but the
Association derives no revenue from them. East Windsor Township, not
Twin Rivers, provides for the school system, the police and fire depart-
ments, the municipal court system, and the first aid services. Twin Rivers
offers its residents services in the form of landscape maintenance, upkeep
of trust-owned roads, removal of trash from certain sections of the
community, and cleaning of snow. Thus, we find the nature, purposes, and
primary use of Twin Rivers’ property is for private purposes and does not
favor a finding that the Association’s rules and regulations violated
plaintiffs’ constitutional rights.
The second Schmid factor requires that we examine the extent and
nature of the public’s invitation to use the property. A public invitation to
use the premises may be express or implied. As we explained in Coalition,
supra, an implied invitation can be inferred where the property owner
SEC. B THE CITY AS PUBLIC OR PRIVATE 55
permits and encourages public use of the property. Here, the Association
has not invited the public to use its property. Although Twin Rivers is not
a gated community and its roads are accessible to public traffic, we agree
with the Association’s position that ‘‘Trust-owned property and facilities
are for the exclusive use of Twin Rivers residents and their invited
guests.’’ Moreover, the mere fact that owners may sell or rent property to
members of the public who are invited to come into Twin Rivers and
inspect such property hardly implicates a public invitation. We conclude
that the limited nature of the public’s invitation to use the property does
not favor a finding that the Association’s rules and regulations violated
plaintiffs’ constitutional rights.
The third Schmid factor concerns the purpose of the expressional
activity in relation to both the private and public use of the property. This
part of the test requires that we examine ‘‘the compatibility of the free
speech sought to be exercised with the uses of the property.’’ Essentially,
we must look to the fairness of the restrictions imposed by the Association
in relation to plaintiffs’ free speech rights. In this case, plaintiffs’ expres-
sional activities—posting political signs, free use of the community room,
and access to the community newspaper—involve political-like speech
aimed at affecting the manner in which Twin Rivers is managed.
We find that plaintiffs’ expressional activities are not unreasonably
restricted. As the Association points out, the relationship between it and
the homeowners is a contractual one, formalized in reasonable covenants
that appear in all deeds. Moreover, unlike the university in Schmid, and
the shopping center in Coalition, Twin Rivers is not a private forum that
invites the public on its property to either facilitate academic discourse or
to encourage public commerce. Rather, Twin Rivers is a private, residen-
tial community whose residents have contractually agreed to abide by the
common rules and regulations of the Association. The mutual benefit and
reciprocal nature of those rules and regulations, and their enforcement, is
essential to the fundamental nature of the communal living arrangement
that Twin Rivers residents enjoy. We further conclude that this factor
does not weigh in favor of finding that the Association’s rules and
regulations violated plaintiffs’ constitutional rights.
We are mindful that at least in regard to the signs on the property of
the homeowners, it is the private homeowner’s property and not that of
the Association that is impacted. The private property owner not only is
‘‘protected under due process standards from untoward interference with
or confiscatory restrictions upon its reasonable use,’’ Schmid, supra, but
also our constitution affirmatively grants the homeowner free speech and
assembly rights that may be exercised on that property. Notably, the
Association permits expressional activities to take place on plaintiffs’
property but with some minor restrictions. Homeowners are permitted to
place a single sign in each window and signs may be placed in the flower
beds adjacent to the homes. Those limitations are clearly not an ‘‘unto-
ward interference with’’ or a ‘‘confiscatory restriction’’ on the reasonable
use by plaintiffs’ on their property to implicate due process standards.
56 PROBLEMS OF DECENTRALIZATION CH. 1
BRICKLEY, JUSTICE.
This case concerns 1993 P.A. 362, the statute commonly known as the
charter schools act, which authorized the creation of public school acade-
mies. The plaintiffs brought this suit to enjoin the distribution of public
funds by challenging the constitutionality of the statute. * * *
Under Act 362, a public school academy is organized as a nonprofit
corporation under the Nonprofit Corporation Act. A public school academy
is administered under the direction of a board of directors in accordance
with Act 362 and the nonprofit corporation bylaws contained in the public
school academy’s contract. * * * To organize a public school academy, an
applicant, either a person or an entity, must submit an application to an
authorizing body. * * * Act 362 specifies four types of authorizing bodies:
(1) the board of a school district, (2) intermediate school board, (3) the
board of a community college, and (4) the governing board of a state
public university. An authorizing body is not required to issue any public
school academy contracts, but if it does, it must issue the contracts ‘‘on a
competitive basis taking into consideration the resources available for the
proposed public school academy, the population to be served by the
proposed public school academy, and the educational goals to be achieved
by the proposed public school academy.’’ Before granting a contract to
operate a public school academy, an authorizing body is required to adopt
a resolution establishing the method of selection, length of term, and
number of members of the public school academy’s board of directors. The
authorizing body for a public school academy is the fiscal agent for the
public school academy, and its aid payments are paid to the authorizing
body. The authorizing body is responsible for the public school academy’s
compliance with the contract and all applicable law. Further, the contract