Free Exercise of Speech in Shopping Malls: Bases that Support an Independent Interpretation of Article 40 of the Maryland Declaration of Rights
"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. . . . . Before exploring [the] 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."