Here's how the courts really honor the First Amendment: they first claim that the right to free speech represents one of our "cherished" freedoms. Then they find a way to take it away from us.

There's a theory in First Amendment law called the "public forum," which is a legal term of art. It means that certain public spaces are First Amendment zones where speech cannot be restricted. The town square is a public forum. So are the sidewalks and public parks and any other place where speech traditionally takes place. The public forum is truly one of those concepts that makes our's a free society.

In the late 1960's, the U.S. Supreme Court, like nearly every other institution in American society, was progressively pushing forward. The Justices on the Court were predominantly liberal and found ways to bring the Constitution to life. It was during the 1960's that the Supreme Court identified a constitutional right to privacy and required the police to read criminal suspects their rights during their arrest. But the most profound thing that the Supreme Court did was to proclaim in 1968 that private shopping malls were public forums, reasoning that shopping malls were the new town squares, and if speech cannot be restricted in the town square, then it cannot be restricted in shopping areas, which have all the hallmarks of a town square except that it's private property.

As the 1960's turned into the 1970's, things began to turn to shit. The 1970's weren't all bad, but American society was hung-over from the 1960's, and that hangover brought us a period of malaise and second-rate American leadership, including a criminal by the name of Richard Milhous Nixon, elected President in 1968 and given the opportunity to appoint four Supreme Court Justices in just a few years. The permanent majority on the Supreme Court turned into a conservative majority in just a few years. One of the first things the Nixon Supreme Court did was to overrule that decision from 1968 which held that private shopping areas were public forums. The new rule was that private property was private property and you can shop here but shut the hell up and take your shit and get out of the mall if you don't like the way things are.

The good thing about American freedom is that the state courts can expand our freedoms even when the U.S. Supreme Court is taking it away from us. Certain things are legal because the state courts say they are legal, no matter what the Supreme Court says. So some state courts interpreted their state constitutions protect free speech in the shopping mall even though the Supreme Court said that the federal Constitution says otherwise. One of those states is California, which has held for about 30 years that private shopping areas remain free speech zones.

That principle was almost taken away from us in California last week. The California Supreme Court reaffirmed the principle that free speech exists in private shopping areas, but it did so by a 4-3 vote. One vote going the other way and we lose a major free speech priinciple in California. According to Associated Press:

Shopping malls can't stop protesters from calling for boycotts of its stores, even when they're on mall property, the California Supreme Court ruled Monday.

In a 4-3 decision, the justices ruled that California's free-speech protections extend to demonstrators who set up inside shopping centers and urge customers not to stop there.

Monday's ruling upholds a 1979 state Supreme Court decision that found that shopping malls are public forums in which people's free speech rights are protected by the California Constitution.

What did the dissenting judges say in this case? They don't like extending free speech protections to private property and urge the court to overrule its precedents holding otherwise. The dissent said: "Private property should be treated as private property, not as a public free speech zone." But wait! These judges want to be on record as supporting free speech: "I do not denigrate free speech rights. As the New York Court of Appeal stated in its opinion rejecting [free speech on private property], 'the right to free expression is one of this Nation’s most cherished civil liberties.' But free speech rights and private property rights can and should coexist."

This anti-speech approach by the dissenting judges in California reflects the majority of state courts which have ruled in the issue. California is one of the few states which protect speech on private property. The other courts have thrown in the towel and bowed their heads to the almighty God of private property and, by implication, private enterprise, which is the national religion in the United States. As private developers build more and more shopping malls and plazas, our right to free speech diminishes every time a shovel is thrust into the ground for the ceremonial ground-breaking.