Tuesday, September 12, 2017
Gerald Korngold (New York Law School) has posted A New Framework for Achieving Free Expression and Speech in the Evolving and Reconceptualized Mall of the Twenty-First Century (Case Western Reserve Law Review) on SSRN. Here's the abstract:
Much has been written lately about the “death” of malls and large-scale shopping centers. The data show, however, that the great numbers of these malls and centers are not going extinct but rather are undergoing an evolution from the fortress-type, retail-focused mall of the 1970s to a twenty-first century model better attuned to current tastes of citizens and consumers. There are indeed significant challenges, including purchasing trends, troubled brick and mortar retail, increased online sales, and living choices. But despite some shock-value headlines, the data show that the number of malls and large centers continue to increase. Moreover, owners are reconceptualizing the mall and large centers to better position them for economic challenges. New manifestations include the mall as an “experience” beyond retail, lifestyle centers, and mixed-use, town center types of shopping centers. Coupled with some indicators that the move to cities has reversed and the unknown future of internet commerce, it appears that while the mall is evolving and must do so, quality properties are far from dead.
This article traces the rise of, current challenges to, and responses for the mall and large-scale shopping centers. It argues that these entities have been a central locus for community interactions and that their twenty-first century iterations may make them even more important. Malls and large-scale shopping centers have become central points at the expense of downtown shopping districts, where true public space was available for free speech and expression necessary for democratic government. This article shows that in drawing people away from the traditional downtowns, malls have consumed this key civic capital without compensating the municipality. In essence, this is no different than a developer utilizing community infrastructure such as local roads without providing compensation and creating externalities for the town to pay for. Thus, malls and large centers have an obligation to provide space for free public expression and speech in their developments.
First Amendment arguments for such space have been soundly rejected in the past. This article suggests new approaches to establish free expression in spaces in malls to address current needs and the likely increased civic centrality of some of “new” malls and shopping centers over this century. It suggests exactions, incentive zoning, and community benefits agreements as strong alternatives, and examines the advantages and disadvantages of each to the public, government, and mall developers/owners. Some of these solutions are mandatory — imposed by government on the developer — while others are more consensual. In addition to developing the legal methods for establishing civic free space, the article makes an additional contribution. By establishing the legal rules of the game, municipalities and developers will be able to negotiate consensual agreements that provide for public expression space but also protect the owner’s business goals; such agreements that align the parties’ interests may ultimately be the best solution.