Protected by both the First Amendment to the U.S. Constitution and Article 40 of the Maryland Declaration of Rights, (1) the right to free expression is one of the most sacred freedoms in our society. (2) Similarly, the rights of private property owners are highly valued. (3) Consequently, when a person seeks to engage in speech on private property, the courts often must intervene to resolve the tension between these competing rights. This tension between speech and property rights has been especially apparent when citizens have attempted to engage in expressive activities in private shopping malls.
Although such cases have arisen in other jurisdictions, they have not yet been considered by the Maryland courts. However, when the time does come for the Maryland courts to adjudicate these competing interests, they should protect a constitutional right to engage in issue-oriented, non-disruptive speech in large shopping malls, even when these malls are privately owned.
The Supreme Court has interpreted the First Amendment of the Federal Constitution to hold that shopping malls do not involve state action because they do not carry out functions traditionally performed by the government. (4) Notwithstanding, Maryland courts must interpret Maryland's free speech provision: Article 40 of the Declaration of Rights. Unlike the First Amendment, Article 40 should not be interpreted to require state action; rather, it should also apply to private parties, including the owners of shopping malls. Moreover, the broad speech rights conferred by Article 40 require that Maryland courts find that shopping malls are dedicated to a public function. As such, malls in Maryland should be constitutionally obligated to permit free speech. (5)
The grounds favoring an independent state interpretation of the right to free speech are countless. (6) One recognized ground is case law from state courts that have favored independent interpretations of state constitutional provisions. (7) This Article draws from these cases, and examines a series of foundations for independent interpretation. These include: the specific text of Article 40; Maryland state traditions; Maryland state history; the merit and relevance of federal case law; and the merit and relevance of sister state case law.
Before exploring these various bases which support an independent interpretation of Article 40, Part II introduces the state action concept and U.S. Supreme Court case law adjudicating free speech in private shopping malls. Part III follows with an examination of the merits of independent state constitutional analysis. Finally, the article applies to Article 40 the various bases for departure drawn from state court opinions and assesses the value of departing from First Amendment jurisprudence.
II. THE STATE ACTION CONCEPT AND THE U.S. SUPREME COURT'S ADJUDICATION OF THE FREE SPEECH RIGHT IN PRIVATE SHOPPING MALLS
The Federal Constitution protects individual rights against invasions by government, or invasions that involve what has been called "state action." (8) In other words, the Federal Constitution generally does not seek to govern or regulate the affairs of private individuals. (9) The state action doctrine first arose in the Civil Rights Cases, (10) where the U.S. Supreme Court held that the Fourteenth Amendment did not authorize Congress to prohibit discrimination by inns, conveyances, and places of amusement that were privately owned. Rather, its purpose was "to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment." (11) Thus, the rights and liberties guaranteed by the Fourteenth Amendment "erect no shield against merely private conduct." (12)
The Supreme Court, however, has failed to adequately explain the state action concept. …