In Kings Mall v. Wenk , the Appellate Division, Third Department, affirmed the grant of a preliminary injunction restricting the activities of anti-war demonstrators at a shopping mall.
Located in the Town of Ulster, Ulster County, Kings Mall has 32 tenants, one of which is a U.S. Armed Forces recruitment center .
In May 2005, Jay Wenk and Joan Keefe began leading anti-war protests inside the mall that became "increasingly aggressive and disorderly." In response, Kings commenced an action in Ulster County Supreme Court seeking to permanently enjoin Wenk and Keefe from entering onto the mall's property. In the interim, Kings sought a "preliminary injunction," that is, an order restricting protests to sidewalks along the exterior of the facility during a two-hour time period on Saturday afternoons pending the outcome of a full hearing or trial.
The Ulster County Supreme Court granted the request, and the Appellate Division, Third Department, affirmed.
To obtain a preliminary injunction, a movant must establish:
- a likelihood of success on the merits;
- irreparable injury; and
- a balancing of the equities in its favor.
While the First Amendment of the U.S. Constitution protects citizens against government action, since Kings is a private party, the AD3 could discern no constitutional infirmity triggered by the mall's restriction or by the lower court's grant of equitable relief.
Although private actors "entwined" with the government, or who have been delegated a traditional state function, may not limit speech, such prohibitions did not apply in this instance since there was "absolutely no evidence" that Kings was acting on the government's behalf.
The AD3 further concluded that Kings would suffer "irreparable harm" if denied the injunction, as its tenants would lose business during any disruption. And, because the extent of those losses were not readily determinable, an injunction was believed to be a more appropriate remedy under the circumstances.
Finally, the Appellate Court balanced the potential of injury to the respective parties, and found that the mall's financial losses would be greater than any harm the defendants would experience by having their protest relocated to the exterior sidewalk, rather than interior of the mall.
Justice Karen Peters, while concurring with the majority's affirmance, objected to the assertion that there was "no doubt" that defendants' First Amendment rights were not infringed, or that there was "absolutely no evidence" the government was entwined with the mall's actions. Peters was of the opinion that the presence of a government tenant could cloud a property's status and make it more akin to a "public forum."
"The lady doth protest too much, methinks."
To download a copy of the Appellate Division's decision, please use this link: Kings Mall v. Wenk
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New Jersey courts have afforded shopping mall protesters free speech rights on the grounds that these facilities have taken on a "traditional state function." Those cases analogize shopping malls to downtown business districts that historically served as public forums, and have awarded protesters rights akin to those they would have had on a hypothetical "Main Street."