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American Agora: Pruneyard v. Robins and the Shopping Mall in the United States by Paul William Davies B.A. (Wesleyan University) 1991 M.A. (University of California, Berkeley) 1993 J.D. (Stanford Law School) 2001 A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in History in the GRADUATE DIVISION of the UNIVERSITY OF CALIFORNIA, BERKELEY Committee in charge: Professor Richard M. Abrams, Chair Professor Waldo E. Martin Jr. Professor John M. Quigley Fall 2001 American Agora: Pruneyard v. Robins and the Shopping Mall in the United States © 2001 by Paul William Davies 1 Abstract American Agora: Pruneyard v. Robins and the Shopping Mall in the United States by Paul William Davies Doctor of Philosophy in History University of California, Berkeley Professor Richard M. Abrams, Chair This dissertation tells the story of Pruneyard v. Robins, a 1980 United States Supreme Court case involving the right to access shopping mall property for free expression. It is, more broadly, a history of the shopping mall in the United States and of the changing nature of public space in 20th-century America. It opens by locating the postwar American shopping mall within the larger context of the history of socio- commercial space, from the agoras of ancient Greece to the arcades of 19th-century Europe. It then narrates the history of the shopping center in America, with a particular focus on the relationship between the new suburban malls and the central business districts of existing small towns and big cities. It next considers the contribution of a number of prominent intellectuals to the development of the shopping center and generally depicts the intellectual climate in which the Pruneyard case appeared. Finally, it details the Pruneyard litigation itself, from the brief incident that gave rise to the case 2 through its ascent to the Supreme Court of the United States. It concludes by analyzing the legal and intellectual reception of the decision and assesses its impact on public space in America. i To mom and dad ii Table of Contents Preface Acknowledgements Introduction Chapter One: Precedent Chapter Two: The Road To Pruneyard Chapter Three: The Idea of the Shopping Mall Chapter Four: The Shopping Mall on Trial Chapter Five: Aftermath Conclusion Bibliography iii Preface This is a history of the shopping mall in America. It is a history. It is occasionally the historian’s conceit to think that he or she is crafting the history. I suffer no such delusion, nor harbor any such ambition. The shopping mall is a sweeping subject. It invites investigation from architectural historians, social historians, political historians, and urban historians, to name only a few. It is the concern of anthropology, sociology, urban geography, and economics. That the shopping mall has been rather dramatically ignored as a topic of intellectual inquiry makes the need for humility more intense, not less so. A first cut should not expect to fell a tree. What follows is a first cut at a broad and synthetic history of the mall. My only expectation is that it should make a mark. This expectation was not always so limited. As such, I believe it is worth a moment of explanation as to how it is that the history I have written here is both more modest and idiosyncratic than I originally anticipated. American Agora is told through the lens of a single legal case, Pruneyard v. Robins. This is, in part, simply a narrative device. But it also represents my own distinct interest in the shopping mall and its formidable past. I became interested in the mall in my second year of graduate school, at a time when I fully intended to become a diplomatic historian. I had the opportunity, in an American history survey seminar, to read about the case of Pruneyard v. Robins and several other cases in which the United iv States Supreme Court addressed the question of whether there is a right of First Amendment access to the private property of the shopping mall. I read these cases in the context of an argument about the continuities and changes in the Supreme Court under Chief Justices Earl Warren and Warren Burger. But these cases appealed to me substantively, by which I mean that I was struck at how provocative, and evocative, this rather slender legal issue about the right to access shopping mall property was. Was the shopping mall public or private space? How do we understand what these designations “public” and “private” even mean? Had the shopping mall really replaced the central business districts of small town, and big city, America? The “Shopping Mall Cases,” as they have sometimes been called, raised these questions, among others. The material was more than enough to justify and sustain a graduate seminar paper. I came to believe, however, that these cases encouraged something much more substantial: a study of the history of the shopping mall itself. For what was really at issue in these cases was the transformation of American urban and suburban space that had taken place over the course of at least the past half-century. The shopping mall sat squarely in the middle of the transformation, as arguably both cause and effect. And it did so both literally and figuratively, in that “the mall” had become both a physical and ideological construction. The question of the right to access had distilled into legal memoranda and judicial opinions what was actually a much broader story about the history of the mall in American life. I decided I wanted to tell that story. I summarily abandoned diplomatic history for the shopping mall--cables and dispatches and George Kennan for gallerias and food courts and Victor Gruen. I also somewhat hastily, and no doubt unwisely, abandoned the legal focus that had led me to v make this change. I set out to write a history of the shopping mall. Or, rather, the history of the shopping mall: a thorough, and thoroughly sweeping, narrative. It was not forthcoming. Instead, I found that despite the professed ambition, it was a fairly discrete set of issues that consistently engaged me. I was, and remain, curious about nearly everything about the shopping mall, but my true intellectual interest proved much more focused than my curiosity. Time and again I returned in my research to several themes in the history of the shopping mall: to architecture and planning, and in particular the way in which the shopping mall drew off of earlier commercial forms; to the actual intensity of the competition between downtown and the suburban centers; to the differences between the shopping mall industry in formation in the 1950s, and in full throttle success in the 1970s and 1980s; to the relationship between the design and use of the shopping mall; to the way in which the mall has been debated and discussed in both the popular and intellectual arenas. I came to realize that I wanted to write a particular history of the shopping mall, oriented around these themes. Moreover, I realized that this history that I wished to write was, in fact, squarely embedded within the legal issue of the right to access, where I had begun. Early on, I had decided that the history of the shopping mall was a project distinct from the history of the right to access shopping mall property for First Amendment expression. For me, this decision was both counter-intuitive and unreasonable. My history of the shopping mall is ultimately about how we demarcate and contemplate public and private space. It is nowhere better situated than within the legal drama of Pruneyard v. Robins. vi The work that follows is, then, a revision of earlier intentions, but more fundamentally a return to original inspiration. It is a history of the shopping mall in America, but one that is knowingly, if not too self-consciously, personal. I suspect this is true, more or less, of most history. There are many histories to be written about the shopping mall. This is mine.
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