David Wells, a 56-year-old retired police officer in New Jersey, was arrested after he refused to stop spreading Christian literature at a privately owned New Jersey mall. According to mall officials, it’s private property. But some say free speech provisions extend to public gathering places like malls.

According to Judge Napolitano, the Supreme Court of New Jersey has made it clear that a shopping mall is the “moral equivalent of the town square.”

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“People go to shopping malls not only to shop but also to interact with other people in an environmentally controlled place. And therefore, you can’t stop free speech in a shopping mall,” the judge said.

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Napolitano thinks the case against Wells is weak because there’s no allegation that he was trying to prevent people from shopping. “The allegation here is they didn’t want religious literature distributed at their mall. Guess what? If you don’t want that, don’t own a mall in New Jersey.”