Several posts at Photography Is Not A Crime have started interesting discussions over the conflicting desires of photographers and property owners.
In a post on a security guard trying to stop photography on what is purportedly privately owned mall property, some commentators make the argument that malls, shopping centers, and parking lots which are open to the public become a de facto public forum, subject to unlimited First Amendment Rights. That is not correct. In Lloyd Corp., Ltd. v. Tanner, the Supreme Court explained:
In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that ‘[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.’ There is the further proscription in the Fifth Amendment against the taking of ‘private property . . . for public use, without just compensation.’
Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 567 (1972)(emphasis added, edits in original).
This was not an isolated decision. See also Hudgens v. N.L.R.B., 424 U.S. 507 (1976) (Picketing not allowed on private property under First Amendment.); Cent. Hardware Co. v. N.L.R.B., 407 U.S. 539 (1972) (The First and Fourteenth Amendments are limitations on state action, not on action by the owner of private property used only for private purposes. The fact that private parking lots are open to the public do not make them a public forum.); Wright v. Incline Village General Improvement Dist., 665 F.3d 1128 (9th Cir. 2011) (General public does not have a right to use private property for First Amendment expression, to do so can violate the First Amendment rights of the property owner.). Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 (10th Cir. 2005) (Property does not become a public forum simply because a private owner generally opens his property to the public.); Strahan v. Frazier, 62 Fed. Appx. 359 (1st Cir. 2003) (The First Amendment does not prevent a property owner from restricting the exercise of free speech on private property, including a private shopping mall).
There are some exceptions to the general rule, for example a state constitution or statute may grant individuals greater rights than is covered by the First Amendment. See PruneYard Shopping Ctr. v. Robbins, 447 U.S. 47 (1980) (First Amendment does not authorize free speech rights on private property over the property owner’s objection, but does not prevent a state from granting greater rights, such as the right to circulate petitions on property that is open to the general public).