Malls Needs: Not wish to alienate customers Preserve Customer Base Preserve Security and Order Avoid large packs of teens 5 or more Avoid threatening customers, intimidating customers Avoid disrupting of business Avoid fist fights and scuffles Play “a part in your family’s life”
Exemptions For people employed by the mall. For people attending class or program in mall. For people granted license from tenant of mall. For people with credential from non-profit organization Current ban is unconstitutional: A law may not restrain or abridge liberty of speech or press. Art. I Columbia applies Art I. to rights exercised in privately owned shopping centers. Savage citing Robins (in Robins court found a shopping center could not prevent a group of high school students from soliciting signatures on a petition opposed to a United Nations resolution on Zionism) Regulation may not burden substantially more speech than is necessary to further legitimate interests. Savage. Complete BAN can be narrowly tailored but only if each activity within the proscription’s scope is an appropriately targeted evil. Freedom of movement is part of the fundamental rights afforded in Art I. Hutchins citing Gomez. In Gomez the exact same curfew was struck down as unconstitutional. First Amendment protects minors as well as adults particularly with freedom of movement. Hutchins To determine if regulation on minor’s freedom of movement is sufficiently narrowly tailored to be valid look to test in Savage. See footnote 2 in Hutchins. State has great interest in protecting minors thus restriction that inhibit the fundamental rights of minors are valid only if they serve a significant state interest and are narrowly tailored to achieve these interests. Hutchins Must include exemptions for legitimate activities to be valid. Hutchins
Ours is not: Property owner has right to be free from disruption of normal business hours and freedom from interference with customer convenience. Can have restrictions provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample alternative channels for communication of the information. Savage citing Clark. State has great interest in protecting minors thus restriction that inhibit the fundamental rights of minors are valid only if they serve a significant state interest and are narrowly tailored to achieve these interests. Hutchins Must include exemptions for legitimate activities to be valid. Hutchins
PROPOSED PARENT ESCORT POLICY To best serve the patrons and other visitors, protect property, maintain order, and insure personal safety at the Sunrise Galleria Mall, the following Parent Escort Policy is adopted. 1. Persons under 17 years of age will be denied admission to the Mall after 6:00 p.m. unless: A. They are accompanied by a parent of guardian; or B. They are employed by tenants in the mall; or C. They are attending a class or a program in the mall; or D. They are granted a license/permit from a tenant in the mall; or E. They have a credential from a non-profit organization and are engaged in promoting or furthering the organizations goals. 2. Persons who appear to be under 17 years of age will be approached by Mall employees, at one of the 14 direct access entrances to the facility or in any other portion of the Mall, and be requested to document their age. 3. Persons under 17 years of age who do not meet one of the exceptions in paragraph 1 will be requested to immediately leave Mall property. Failure to respond to such a request will be considered trespassing on the private property of Sunrise Galleria Mall, subjecting the individual arrest and subsequent prosecution. 4. If a person under 17 years of age appears unable to arrange transportation to his or her home or to another place of safety, Mall employees will attempt to contact the individual’s parent or guardian. If no other transportation is available, a Mall Security Officer will escort the individual to a safe location. 5. This policy will not apply to the several magnet stores, restaurants and other retail establishments associated with the Mall and which maintain separate entrances to their facilities. However, the policy will be enforced at entrances from those facilities into the Mall proper.
LETTER TO LESLIE KELLEHER Dear Ms. Kelleher, As you are aware of by now, the proposed curfew poses numerous problems for many good citizens and patrons of the mall. Further, the absolute ban as you currently have it is unconstitutional. Accordingly, we would like to come to a resolution by providing a proposed policy that both passes Constitutional muster and accomplishes the goals of the mall and its good patrons. a) The Mall’s proposed absolute ban on unaccompanied teenagers is unconstitutional. Pursuant to Article I. Section I. of the Columbia Constitution: “A law may not restrain or abridge liberty of speech or press.” Section 2. further provides that “the people have the right freely to assemble together, to consult for the common good, to make known their opinions to their fellow citizens and their representatives.” As you may know, the Supreme Court of Columbia applies Art I. to rights exercised, not only in public arenas, but also in privately owned shopping centers. Savage citing Robins. In Robins the court found a shopping center could not prevent a group of high school students from soliciting signatures on a petition opposed to a United Nations resolution on Zionism. The Court found that “the privately held shopping center is more than the public trading area for much of metropolitan America, having evolved beyond the strictly retail stage to become a public square where people gather. For much of the nation, including our state, the shopping center is often the only large contained place in a suburb and it provides a place for exhibitions and activities that no other space can offer. Thus, privately owned shopping centers have supplanted the traditional downtown public business districts where free speech once flourished. Robins. The freedom of movement is also protected under Article I. as a fundamental right. “The Columbia Supreme Court has also recognized that our State Constitution, particularly the free speech and assembly provision of Article I, protects the freedom of movement on city street, noting it is among the most cherished of our fundamental rights.” Hutchins. These freedoms protected under Article I of the Constitution apply both to adults and minors. The Court in Hutchins concluded “that the rights to freedom of movement, to assemble, and to associate extend to minors as well as adults.” Hutchins. With regard to restricting these rights, “restrictions that inhibit the fundamental rights of minors are valid only if they serve significant state interests and are narrowly tailored to achieve these interests.” Hutchins. More specifically, to determine if a restriction is valid the Hutchins Court instructs us to look to Savage in determining if an ordinance is narrowly tailored as applied minors. Hutchins footnote 2.
The Savage Court informs us that a regulation may not burden substantially more speech (or movement) than is necessary to further legitimate interests. Therefore, a complete ban can be narrowly tailored but only if each activity within the proscription’s scope is an appropriately targeted evil. Savage. In other words, any ordinance must include exemptions for legitimate activities. Hutchins. In Hutchins, a group of minors challenged the Constitutionality of a Juvenile Curfew that did not allow persons under the age of 17 from being in a public place unless accompanied by a parent or guardian. Because the curfew did not allow for an exemption for legitimate activities, it was struck down as unconstitutional. Here, the curfew the mall is planning on implementing is very similar to the absolute curfew in Hutchins. Pursuant to the curfew, any person under 17 years of age will not be permitted to enter without a parent or guardian. As a result of the curfew, many good patrons will be prevented from undertaking legitimate activities. Amanda Blake is 14 years of age. Amanda studies modeling with the John Casablanca Agency located in the Mall, a tenant in your building. Amanda has even modeled in the Sunrise Galleria’s Children’s Fashion Show. If the curfew is implemented she will be forced to drop out of the class, as the classes are held in the evening to accommodate the bulk of the students who go to school during the day. Amanda is surely engaging in a legitimate activity and should be exempt from any curfew policy. Michael Stanton is 15 years of age. Michael is employed in the evening and night by Galleria Pet Center, a tenant in your building. Michael wants to be a veterinarian and has learned that his changes increase with experience. Surely Michael is engaged in a legitimate activity and should be exempt from any curfew policy. Keisha Malowe is 13 years of age. Keisha has been studying piano with Gino Pisterella, owner of Giovanni Steinway Music, a tenant in your building. Keisha has been serving as a volunteer tutor since she was 5 years old. It is the only chance Keisha has to practice on a Steniway Grand Piano. Surely Kiesha is engaged in a legitimate activity and should be exempt from any curfew policy. Stanley Fink and Marin Dale are 12 and 16 respectively. Stanely practices swimming in the Waterpark and Marin delivers completed work for her mother to Cantrell Associates. They are surely engaged in legitimate activities and should be exempted from any curfew. As a result of the absolute curfew these children, engaged in legitimate activities protected by the fundamental right to movement under Article I of the Constitution, will be denied their fundamental rights. The absolute curfew is unconstitutional and must be changed.
b) Our proposed curfew alternative will pass constitutional scrutiny. With just the few modifications to the current plan, our proposed alternative will pass constitutional muster as well as meet the needs of Sunrise Mall and its good patrons. While the fundamental right to movement is protected by Article I of the constitution, a property owner has right to be free from disruption of normal business hours and freedom from interference with customer convenience. Robins. The state has great interest in protecting minors thus restriction that inhibit the fundamental rights of minors can be valid if they serve a significant state interest and are narrowly tailored to achieve these interests. Hutchins. Any restriction must include exemptions for legitimate activities to be valid. Hutchins. The interests of Sunrise Mall are legitimate. Sunrise should be able to provide a safe shopping environment for all its patrons and provide a productive business environment for its tenants. There are 3 factors to consider that warrant the differential treatment of minors’ constitutional right: “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” Hutchins. Thus, if an ordinance provides for exemptions for legitimate activities then it can be valid. In the proposed alternative, minors engaged in legitimate activity would be allowed to continue with that activity. Michael Stanton is employed by a tenant in the mall and would thus be allowed to continue his legitimate employment. Amanda and Stanley are both attending a class or program in the mall and would thus be allowed to continue their legitimate activities. Keisha and Marin enter to conduct legitimate activities with tenants in your mall and can thus be granted a license to continue their legitimate activities. And finally, Jessica is acting on behalf of an Environmental Action Party and with proper ID can continue her legitimate activity. c) The alternative formulation meets the Mall’s needs as we understand them. Pursuant to the letter I received from you I understand that the Sunrise Mall has legitimate needs as well. The mall wishes to preserve a customer base and maintain security and order in the Mall. The mall wants to maintain a friendly shopping environment where patrons are not intimidated by large packs of minors. The mall wants to avoid the disruption of business and to avoid fights and theft. But most of all, the Mall wants to “Play a part in your family’s life.” These are wonderful goals and to the extent that your curfew furthered these goals our alternative does also. We have simply added exemptions for those minors engaged in
legitimate activities. Most certainly, those minors that are working in the Mall, or attending a class in the Mall, or volunteering their time in the Mall are not contributing to any unlawful activity. Those minor do not jeopardize the security of the mall and should be allowed to continue to allow the Mall to play a part in their family’s lives.