*496***100**1212 Robert S. Smith and Audrey S. Feinberg, New York City, for appellant.
*497 Christopher A. Hansen and Steven R. Shapiro, New York City, for respondents.
Edward R. Korman and Naomi Siegel, New York City, for The N.Y. Government Affairs Committee of the Intern. Council of Shopping Centers, amicus curiae.
*498OPINION OF THE COURT
TITONE, Judge.
All members of the court agree that the right to free expression is one of this Nation's most cherished civil liberties. We differ solely on the question whether article I, § 8 of our State Constitution,1 considered in light of both history and modern conditions, precludes the owner of a private shopping mall from enforcing a blanket no-handbilling policy and compels the owner to permit use of the mall for the distribution of leaflets opposing nuclear energy. As the court concludes that article I, § 8 only limits State action, not present here, the order of the Appellate Division should be reversed and a declaration made in defendant's favor.
I
Smith Haven Mall, a typical suburban shopping center located in central Suffolk County, Long Island, is privately owned and operated by defendant Prudential Insurance Company of America. It consists of 97 acres, of which 85 acres are dedicated to parking facilities, and contains three major department stores and approximately 125 other stores, restaurants, and service businesses, all connected by pedestrian walkways. Each of the commercial establishments is a tenant, paying rent for the use of space.
The Mall has consistently and nondiscriminatorily prohibited all leafletting, and all types of political activities or gatherings. To maintain and foster an environment conducive to the business of its tenants, the Mall has permitted only those types of events which will generate goodwill, consumer interest, and patronage. On some occasions the Mall has permitted local officials to park mobile vans in its parking lot to offer public services such as advice to senior citizens and veterans, and blood and glaucoma tests. All such activities are conducted from within the vans, and it bears ***101 emphasis that in no circumstances does the Mall permit any kind of campaigning, *499 petitioning **1213 or distributing of leaflets in connection with these activities.2
In July and August of 1980, individuals representing plaintiffs SHAD and Paumanok, organizations that oppose, through what they describe as “education and non-violent action,” the use of nuclear energy to generate electricity, including plaintiffs Glaser and Cina, came to the Mall, and, without obtaining permission from the Mall owner, proceeded to hand out leaflets opposing the use of nuclear power and encouraging people to attend various demonstrations concerning the Shoreham Nuclear Power Plant. On both occasions, a security officer informed them of the Mall's policy prohibiting leafletting on the premises and directed them to cease doing so.
Plaintiffs then brought this action against the Mall. Their complaint alleges claims under the New York Constitution only and seeks declarative and injunctive relief compelling the Mall to permit them to distribute leaflets.
On cross motions for summary judgment, Special Term, though acknowledging that the “Mall is private property and operated for * * * commercial benefit”, held that the free speech provision contained in N.Y. Constitution, article I, § 8 invalidated the no-handbilling policy and compelled the Mall to permit plaintiffs to distribute leaflets, subject to the imposition of “reasonable regulations concerning time, place and manner” (118 Misc.2d 841, 843, 849, 462 N.Y.S.2d 344).
The Appellate Division affirmed by a sharply divided court. The majority elaborated on Special Term's theme, reading the State Constitution to “require that the mall be enjoined from prohibiting the distribution of leaflets on its premises, subject only to the adoption of reasonable regulations as to the time, place and manner in which such activities may be carried out” (106 A.D.2d 189, 190, 484 N.Y.S.2d 849). The dissent urged that the result could not be reached “without ignoring the history of the Bill of Rights and its purpose, and without undertaking to rewrite the Constitution” (106 A.D.2d, at p. 205, 484 N.Y.S.2d 849). We now reverse.
Plaintiffs, therefore, urge us to construe our State Constitution's free speech provision more broadly. The linchpin of their argument is that no State action requirement exists or should exist under our State Constitution so that the free speech provision may be read as imposing an affirmative limitation on private conduct. The history of the State action requirement, traditional usage and understanding and contemporary approaches to constitutional adjudication, lead us to a contrary conclusion.
The free speech provision now found in N.Y. Constitution, article I, § 8 was added in 1821 as part of the New York Bill of Rights, which was essentially based on the Bill of Rights contained in the United States Constitution (Chaffee, Free Speech in the United States, at 4–6; 2 Chester, Legal & Judicial History of ***102 New York, at 41, 121–122; 1 Lincoln, Constitutional History of New York, at 733–734, 739–740). The Reports of the Proceedings and Debates **1214 at the 1821 Convention plainly indicate that the New York Bill of Rights, like its Federal counterpart, was intended by its drafters to serve as a check on governmental, not private, conduct (Carter and Stone, Reports of the Proceedings and Debates of the Convention of 1821, at 163, 172). General Root, for example, explicitly directing himself to the “4th clause, respecting the liberty of speech and the press * * * said it was doubtless intended to secure the citizen as well against the arbitrary acts of the legislature, as against those of the judiciary” (id., at 167).4
These observations are hardly surprising. That a Bill of Rights is designed to protect individual rights against the government is standard constitutional doctrine (Cooley, Constitutional Limitations, at 36–37 [rev. ed. 1972]; Hand, The Bill *503 of Rights [Harvard Univ Press 1958]; Rottschaeffer, American Constitutional Law § 305 [1939]; Tribe, American Constitutional Law, at 1147, n. 1), and, while the drafters of the 1821 free speech clause may not have envisioned shopping malls, there can be no question that they intended the State Constitution to govern the rights of citizens with respect to their government and not the rights of private individuals against private individuals. That intent is consistent with modern constitutional theory as well as the understanding prevalent in 1821 (see, Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 160, 408 N.Y.S.2d 39, 379 N.E.2d 1169 [absence of express State action requirement does not dispense with this constitutional predicate]; Cooley, Constitutional Law, ch. 12, at 219 [3d ed. 1898]; McLain, Constitutional Law § 205, at 294 [2d ed. 1910]; Pomeroy, Constitutional Law § 230 [10th ed. 1888] ). Indeed, this fundamental concept concerning the reach of constitutionally guaranteed individual rights is not only deeply rooted in constitutional tradition, it is at the foundation of the very nature of a constitutional democracy.
We agree with the dissent that the willingness of courts to interpret constitutional provisions in light of changing conditions has safeguarded both our Constitutions and the freedom they protect (dissenting opn., at p. 511, 498 N.Y.S.2d at p. 107, 488 N.E.2d at p. 1219). There is a profound difference, however, between interpreting constitutional provisions and dispensing with constitutional requirements. In circumstances such as these, where State action has historically been a component of the constitutional inquiry, the principled “modern” approach would not dispense with the requirement, but rather would question how it is appropriately defined given the novel context (see generally, Tribe, op. cit., at 1147–1174; Nowak-Rotunda-Young, Constitutional Law, at 497–508 [2d ed 1983]; Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 160–161, 408 N.Y.S.2d 39, 379 N.E.2d 1169,supra; Dworkin, A Matter of Principle, at 386–389 [1985]; Alderwood Assoc. v. Washington Envtl. Council, 96 Wash.2d 230, 247et seq., 635 P.2d 108, 118et seq. [Dolliver, J., concurring]; Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337,supra ).6
***105 It would be a “demonstration of judicial arrogation” ( **1217Montgomery v. Daniels, 38 N.Y.2d 41, 53, 378 N.Y.S.2d 1, 340 N.E.2d 444) and it “would neither serve *505 the purposes of orderly government nor honor the role of the judiciary to lay aside standards of judicial review recently held appropriate” (Board of Educ. v. Nyquist, 57 N.Y.2d 27, 49, n. 9, 453 N.Y.S.2d 643, 439 N.E.2d 359,supra). Abrogation of a State action requirement, as urged here by plaintiffs, would have broad and mischievous consequences because it would signify “a determination by the court that it, instead of the legislature, will settle conflicting interests among citizens and that it will accomplish this by what it chooses to call a constitutional basis” (Alderwood Assoc. v. Washington Envtl. Council, 96 Wash.2d 230, 250, 635 P.2d 108, 119,supra [Dolliver, J., concurring] ), which is then beyond legislative reach. A disciplined perception of the proper role of the judiciary, and, more specifically, discernment of the reach of the mandates of our State Constitution, precludes us from casting aside so fundamental a concept as State action in an effort to achieve what the dissent perceives as a more socially desirable result.
III
We now turn to the question whether a shopping mall owner's enforcement of a blanket no-handbilling policy constitutes State action within the meaning of our State Constitution. If there be no State action, our inquiries must end (see, Nowak-Rotunda-Young, Constitutional Law, op. cit., at 497).
In the context of a due process challenge to private action, we have commented that, despite its outward simplicity as a concept, State action is in fact an elusive principle not reducible to ritualistic incantations or precise formalism (see, Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 158, 408 N.Y.S.2d 39, 379 N.E.2d 1169,supra [citing Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45];see also, Tribe, American Constitutional Law, op. cit., at 1148–1149). The factors to be considered in determining whether it has been shown include: “the source of authority for the private action; whether the State is so entwined with the regulation of the private conduct as to constitute State activity; whether there is meaningful State participation in the activity; and whether there has been a delegation of what has traditionally been a State function to a private person (Melara v. Kennedy, 541 F.2d 802, 805). As the test is not simply State involvement, but rather significant State involvement, satisfaction of one of these criteria may not necessarily be determinative to a finding of State action” (Sharrock v. Dell Buick-Cadillac, supra, 45 N.Y.2d at p. 158, 408 N.Y.S.2d 39, 379 N.E.2d 1169).
*506 The relevant inquiry in this case thus becomes the degree to which the State has involved itself in the enforcement of private property rights against individuals wishing to assert their rights of free expression. If such entanglement or delegation exists, it must then be ascertained whether that entanglement or delegation is sufficient to trigger the protections of the State Constitution (Sharrock v. Dell Buick-Cadillac, supra, at p. 161, 408 N.Y.S.2d 39, 379 N.E.2d 1169).
Discussion concerning the purportedly unobstructive nature of plaintiffs' activities, the need for inexpensive channels of communication, and the long and rich tradition of free expression in this State begs the question.8 Such factors are irrelevant to whether State action is present and whether there has been a constitutional infringement. Since there is no State *507 action involved, the provisions of our State Constitution have no role in the resolution of a dispute between private parties.
For these reasons, the order of the Appellate Division should be reversed, with costs, defendant's motion for summary judgment granted, plaintiffs' motion for summary judgment denied, and a declaration made that plaintiffs have no right to distribute leaflets on the defendant's property, contrary to defendant's wishes.
JASEN, Judge (concurring).
While I concur in the opinion of Judge Titone, I write to emphasize what I believe to be a critical limitation upon a shopping mall owner's right to exclude expressionist activity. In my view, where the owner of a shopping mall voluntarily and affirmatively creates a public forum or accommodation for expressionist activity, by inviting or permitting members of the general public to engage in noncommercial expressive conduct of a civic or community nature in the common areas of the mall, the owner cannot, at the same time, exclude particular expressionists upon purely discriminatory or arbitrary grounds.
In the first instance, the exclusive choice and control rests with the property owner as to whether a mall shall be open or closed to noncommercial expressionist activity. As is true for any owner of private property, the mall owner may exercise his common-law right to exclude and, thereby, deny access to all individuals whose purpose is other than to engage in shopping, browsing, or other commercial or business activities. (Madden v. Queens County Jockey Club, 296 N.Y. 249, 253–254, 72 N.E.2d 697,cert. denied332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346.)
However, once the owner of a shopping mall has opened the doors to the public to participate in the exchange of noncommercial ideas, such as to present or partake of cultural, educational, or political activities, the common-law right of the owner to exclude any expressionist from his private property must be limited to nondiscriminatory and nonarbitrary grounds. (See, Matter of United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 409–415, 465 N.Y.S.2d 871, 452 N.E.2d 1199;Jacobson v. New York Racing Assn., 33 N.Y.2d 144, 149–150, 350 N.Y.S.2d 639, 305 N.E.2d 765.) The owner may not exclude any person or group from the common areas of a mall, thus serving as a public forum or accommodation for expressionist purposes, on the basis of race, creed, color, gender, political belief, content of expression, or some other reason repugnant to the law or public policy of this State. (See, ***107Matter of Walker, 64 N.Y.2d 354, 359, 486 N.Y.S.2d 899, 476 N.E.2d 298;*508Hollis v. Drew Theol. Seminary, **1219 95 N.Y. 166, 172.) Of course, a mall owner must still be permitted to regulate the expressive conduct so as to preclude disruption, vulgarity, incitement, or whatever else threatens the health or safety of the patrons or interferes with the primary commercial purpose of a mall. But persons otherwise welcome in a shopping mall for expressionist purposes cannot be excluded solely on the basis of the ideational content of their expression or for some other invidious reason.
Under the facts presented in this case, it cannot be said that the mall owner acted in a discriminatory or arbitrary fashion. The Smith Haven Mall does provide rent-free space to members of the general public for various expressionist activities, but plaintiffs have sought only to engage in the distribution of handbills which is uniformly prohibited by the mall owner. The absolute prohibition against this particular manner of expression, being an entirely content-neutral and reasonable means of avoiding litter, confrontation and interference with commercial activity, is a nonarbitrary rule which does not violate any antidiscrimination law or public policy. Consequently, in my view, the mall owner's ban against handbilling is a permissible exercise of the common-law right of exclusion.
WACHTLER, Chief Judge (dissenting).
The question presented by this case is whether article I, § 8 of our State Constitution, which affirmatively guarantees the freedom of expression, is to be interpreted in light of modern conditions so as to preserve its underlying purpose and vitality. Because the majority opinion unnecessarily restricts the applicability of article I, § 8, and its decision will adversely affect the ability of many persons and organizations to express their views, I dissent.
*509 The Smith Haven Mall (hereinafter the Mall) is the largest retail center in Suffolk County, and is one of only 18 shopping centers in New York which contain over 1 million square feet of interior space (see, Shopping Center World, at 53 [Jan. 1985] ). As found by the lower courts, the Mall was designed to encourage the public to congregate and linger, and it contains several large seating areas. Furthermore, the Mall permits its facilities to be used for a large number of public purposes and community activities, including charity auctions, presentations by the Boy Scouts and Girl Scouts, recruitment efforts by universities and the Armed Forces, voter registration drives by the League of Women Voters, promotional events by local towns, and the provision of free health services. Plaintiffs' attempts to distribute leaflets caused no greater interference with the commercial interests of the Mall than any of these activities do. On each of the two occasions when the representatives of the plaintiff organizations came to the Mall, they stood under the portico outside of the main entrance to the Mall's building. Ignored by the majority is the finding by the lower courts—as had been conceded by the Mall in its answer—that the plaintiffs' activities did not in any manner disrupt the Mall's operation.
It is true that the Supreme Court has held that the First Amendment to the United States Constitution does not protect leafletting in a privately owned shopping ***108 center (see, Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131;**1220Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196). The Supreme Court has also acknowledged, however, that a State may recognize broader free speech rights on private property as a matter of State law without violating any Federal constitutional rights of the property owner. In PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741, the court held that California's recognition of a State constitutional right to solicit signatures for petitions in shopping malls did not infringe upon either the Federal property, due process or First Amendment rights of the mall owners. Addressing the same claims as were made by the shopping center owner in this case, the United States Supreme Court found that this State-imposed limitation on the mall owners' right to exclude was not a taking of their property “ ‘in the constitutional sense’ ” because there was no indication that it would “unreasonably impair the value or use of their property as a shopping center” (id., at pp. 82–83, 100 S.Ct. at 2041). The Supreme Court specifically noted, in support of this conclusion, that the mall owner was permitted to adopt time, place and manner regulations on the *510 expressive activity so as to minimize any interference with the mall's commercial functions.
Article I, § 8, originally adopted as article VII, § 8 of the New York State Constitution of 1821, states in relevant part: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” It is significant that, although the First Amendment of the United States Constitution had been ratified 30 years earlier, the drafters of the free speech section at the 1821 New York State Constitutional Convention chose not to follow the language of that provision.1 Rather, the language chosen, an affirmative grant of the freedom of expression to all citizens, followed by a separate clause limiting legislative action, was the same as had been adopted in several other States (see, e.g.,Pa. Const. of 1790, art. IX, § 7, cited in 8 Swindler, Sources and Documents of United States Constitutions, at 292; Miss. Const. of 1817, art. I, § 6, cited in id., vol. 5, at 348; Conn. Const. of 1818, art. I, § 5, cited in id., vol. 2, at 145; Me. Const. of 1819, art. I, § 4, cited in id., vol. 4, at 315).2
The discussion of the free speech provision at the 1821 Convention was confined almost exclusively to that portion of the provision concerning prosecutions for libels (see, Carter and Stone, Reports of the Proceedings and Debates of the Convention of 1821, at 163–173), and the proceedings do not reveal any specific intent with regard to the extent of the *511 “State action” requirement in article I, § 8. While the majority also relies on statements made at the 1967 Constitutional Convention (majority opn., at p. 504, n. 6, 498 N.Y.S.2d at p. 104, n. 6, 488 N.E.2d at p. 1216, n. 6), such statements, of course, are entirely irrelevant ***109 with regard to the meaning of article I, § 8, adopted 146 years earlier. The absence **1221 of any evidence of specific intent which would dictate the result in this case is not surprising. Article I, § 8 was drafted in 1821, long before shopping malls existed. Nor was there any indication then that privately owned property would come to replace town squares and downtown business districts as the public gathering centers in many communities. The majority apparently views constitutional provisions as inflexible law to be interpreted precisely as the framers did at the time of their adoption, and thus finds article I, § 8 inapplicable here, regardless of what present-day circumstances are.
I do not dispute that the history of a constitutional provision is important, and particularly where the proceedings of a constitutional convention reveal a specific and limited purpose for a provision, it may be dispositive (see, e.g., Matter of Esler v. Walters, 56 N.Y.2d 306, 313–314, 452 N.Y.S.2d 333, 437 N.E.2d 1090). Still, we have before us in this case a brief provision adopted in 1821 after little discussion which, in broad and general terms, sets forth a basic ideal of a democracy. It is largely because of the willingness of courts to interpret such constitutional provisions in light of changing conditions that our freedoms have remained intact and our Constitutions have survived for so long. As stated by Chief Justice Marshall 166 years ago, a Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” (M'Culloch v. Maryland, 4 Wheat [17 US] 316, 415, 4 L.Ed. 579.)
In Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the Supreme Court had to determine whether the equal protection clause in the Fourteenth Amendment required that States provide integrated public schools, rather than ones which were “separate but equal.” The court conceded that it could not rely upon the specific intent underlying the provision, as the relevant history was inconclusive as to whether integrated schools were to be required. Instead, the court stated: “[W]e cannot turn the clock back to 1868 when the Amendment was adopted * * * We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal *512 protection of the laws” (347 U.S. at pp. 492–493,74 S.Ct. at p. 691 [emphasis supplied] ).
Here too, given the obvious absence of specific intent, we must consider whether article I, § 8 protects plaintiffs' activities in light of the purpose underlying the provision and the role of large shopping malls in modern society. The proceedings of the 1821 Constitutional Convention reveal that the free speech provision, as an integral part of the Bill of Rights, was proposed primarily to express the view that fundamental principles of individual liberties were safeguarded under New York law (see, Carter and Stone, Reports of the Proceedings and Debates of the Convention of 1821, at 102). There can be little doubt, of course, that the right of free expression is one of our most cherished liberties and is essential for the functioning of a democracy (see, e.g., Matter of Oliver v. Postel, 30 N.Y.2d 171, 183, 331 N.Y.S.2d 407, 282 N.E.2d 306;Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 313–314, 175 N.Y.S.2d 1, 151 N.E.2d 170,appeal dismissed358 U.S. 39, 79 S.Ct. 64, 3 L.Ed.2d 45; Cox, Freedom of Expression, at 1–5). The question thus becomes whether protecting the peaceful and orderly exercise of free speech in a large shopping mall is required to uphold the fundamental values enshrined in article I, § 8.
This displacement is most pronounced with respect to the large regional malls which contain numerous facilities other than retail shops and thereby encourage lengthy and frequent visits to the premises (see, Note, Private Abridgment of Speech and the State Constitutions, 90 Yale L.J., at 168). Again, the number of such malls has been dramatically increasing during the past 25 to 30 years (see, Sternleib and Hughes, Shopping Centers: U.S.A., at 180, 189), and New York has seen no exception to this trend (see, Shopping Center World, at 53 [Jan. 1985]; id., at 66, 78 [Jan. 1981] ).
The facts found by the lower courts with respect to the Smith Haven Mall demonstrate the significant role that large regional shopping malls play as public gathering places. Almost one half of all its customers do not ordinarily shop at any other shopping centers, and its broad range of facilities insure that many of a person's shopping, business, entertainment and personal needs can be met there. The Mall promotes itself as a place for the public to congregate and linger, and the fact that it permits its facilities to be used for numerous public purposes, and does grant access to certain groups for the dissemination of information, belies any assertion that the premises are limited exclusively to commercial functions. The conclusion, reached by the lower courts, that the Mall has all of the attributes of a downtown business area or town center is inescapable.
It is also evident that, in light of the large number of people who congregate at the Mall, the exercise of free speech by those who seek to communicate with the general public will be adversely affected by a complete denial of access to the Mall. As the Supreme Court has sustained the constitutionality of a Federal statute prohibiting the placement of unstamped *514 materials in homeowners' mailboxes (see, United States Postal Serv. v. Greenburgh Civic Assns., 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517), a group without the funds needed for mass mailings or advertisements in the mass media will be effectively precluded from expressing its views to the public in those portions of New York, such as Suffolk County, where privately owned ***111 malls have become the primary public gathering places.3
Our State Constitution is an innovative document. It was intended to ensure that rights and privileges granted in the past would be preserved in the future under changing conditions. In the past, those who had ideas they wished to communicate to the public had the unquestioned right to disseminate those ideas in the open marketplace. Now that the marketplace has a roof over it, and is called a mall, we should not abridge that right.
JASEN, SIMONS, KAYE and ALEXANDER, JJ., concur with TITONE, J.
JASEN, J., concurs in a separate concurring opinion.
WACHTLER, C.J., dissents and votes to affirm in another opinion in which MEYER, J., concurs.
Order reversed, with costs, defendant's motion for summary judgment granted, plaintiffs' motion for summary judgment *515 denied, and judgment granted in favor of defendant declaring that plaintiffs have no right to distribute leaflets on defendant's property, contrary to defendant's wishes.
“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”
In fact, during the 1976 New York Senatorial campaign, then United States Senator James Buckley was evicted from the Mall when he attempted to campaign there.
General Root's view is consistent with the history of the free speech clauses contained in American State Constitutions as traced by Professor Chaffee. He notes that, unlike their European counterparts, the free speech provisions in American constitutions are “not merely expressions of political faith * * * Their history shows that they limit legislative action as much as any other part of the Bill of Rights” (Chaffee, Free Speech in the United States, at 4). Professor Chaffee also observes that the first clause of article I, § 8, which the dissent urges is some sort of affirmative guarantee of free expression, actually was aimed at curbing legislation concerning defamation (id., at 5, n. 2, citing Reports of New York Constitutional Convention of 1821, at 167, 487). Sister State courts have construed identical language in their Constitutions as a limitation on legislative power to abolish defamation actions (Note, Developments in the Law: The Interpretations of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1405–1406;see, McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 886 [Ky.],cert. denied456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849).
In Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 157–163, 408 N.Y.S.2d 39, 379 N.E.2d 1169, for example, we did not determine that, under the circumstances of the particular infringement, State action need not be shown. Rather, we formulated a method of determining whether governmental conduct could be inferred or discovered in a transaction that historically had been characterized as “private.” It is also instructive to note that the framers of the proposed New York State Constitution of 1967—whose aim was to modernize the Constitution to meet changing needs and understandings—adopted a view and articulation of the free speech right that clearly included a State action requirement (see, 12 Proceedings of 1967 Constitutional Convention of the State of New York, at 3 [text of proposed free speech provision]; and see, id., vol. 3, at 347–351 [debate concerning the propriety of adopting the free speech language of the First Amendment]).
It should also be noted that whether the Mall was designed and used not merely as a commercial center, but as a social and community center as well, and whether there are meaningful alternatives for free expression, were hotly contested questions of fact, which could not be resolved by summary judgment (CPLR 3212[b]; Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130;Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316). The findings of the courts below on these questions, relied on by the dissent, could not be accepted by this court in the present procedural posture. For the purpose of disposition of this appeal, however, these findings are irrelevant.
In Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 408 N.Y.S.2d 39, 379 N.E.2d 39, we recognized the importance of such linguistic differences from a parallel provision of the United States Constitution in determining whether to interpret a State constitutional provision more broadly than its Federal counterpart. In Sharrock, we relied largely on “the unique language of the due process clause of the New York Constitution” and more specifically, on the absence of “any language requiring State action” (id., at pp. 159, 160, 408 N.Y.S.2d 39, 379 N.E.2d 39), in holding that the State provision did not contain the same State action requirement as that in the 14th Amendment to the United States Constitution. The majority's claim that the first clause of article I, § 8 “was aimed at curbing legislation concerning defamation” (majority opn., at p. 500, n. 4, 498 N.Y.S.2d at p. 102, n. 4, 488 N.E.2d at p. 1214, n. 4) is unsupported by either the text of the provision, the second sentence of which specifically provides that in a prosecution for libel “if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives * * * the party shall be acquitted”, or by Professor Chaffee's statement cited by the majority, which unambiguously refers to this second sentence.
The harm to those groups which need personal contact with the public, such as to collect signatures for a petition, will, of course, be even more pronounced.