BEILFUSS, J.

Richard E. Jacobs, David H. Jacobs, R.F. Coffin, the Northwestern Mutual Life Insurance Company, J C Associates, doing business as Madison Joint Venture, a partnership owning and operating two regional shopping malls, appeal from a judgment permanently enjoining Robert Major and Nu Parable, an unincorporated, anti-nuclear dance troupe, from performing on partnership properties. Major and Nu Parable cross-appeal. The issues on appeal are: whether the case implicates a constitutional question; whether the recognition of a right of free speech on private property under Wisconsin's constitution would deny appellants their rights under the first, fifth and fourteenth amendments to the United States Constitution; whether the trial court erred by limiting injunctive relief to the prohibition of only certain expressive activities; and whether the trial court abused its discretion in declining to hold Samuel Day, Jr. in contempt for violating a pretrial temporary injunction. The issue on cross-appeal is whether the Wisconsin Constitution secures the right to free speech against private infringements.

We conclude that this case presents unavoidable constitutional issues. All members of this court agree that free expression is one of society's most crucial civil liberties. We differ primarily on the issue of whether Wisconsin's constitution secures the right to free expression against both private infringements and state action. The majority concludes that it does. However, because free speech rights are not absolute, appellants' property and free speech interests under the federal constitution are adequately protected by balancing them against respondents' competing expressional interest. Therefore, our recognition of an expansive guarantee of free expression under the Wisconsin Constitution does not result in a violation of appellants' first, fifth and fourteenth amendment rights. Nonetheless, the record demonstrates that respondents' dance activities have, on balance, interfered with the use of and diminished the value of appellants' property. Therefore, those activities were properly enjoined. Finally, we conclude that the court did not abuse its discretion by limiting the injunctive relief to a prohibition of those dance activities or by refusing to hold Samuel Day in contempt. Therefore, we affirm.

FACTS

Appellants are the owners of two large shopping malls in Madison, known as the East Towne Shopping Center and the West Towne Shopping Center. Respondent Robert Major was a graduate student at the University of Wisconsin at the time of trial. Respondent Nu Parable is an unincorporated dance troupe organized by Major and others to publicly perform, as a political statement, a choreographed depiction of the results of nuclear warfare.

East Towne and West Towne malls are large, enclosed shopping centers containing 95 and 66 tenant stores respectively. Each of the malls also adjoins and is attached to a number of independent, "anchor" department stores. Appellants' rental income from the mall is generated largely through the combination of a base rent and a percentage of each tenant's sales.

Interior corridors, owned by appellants, connect the leased stores and the independent department stores. These corridors are climate controlled and contain numerous fountains, plantings of tropical foliage and carpeted seating areas. The costs of mall maintenance and private security service are borne by the tenants.

The tenants of each mall have formed merchants' associations which, among other things, schedule activities for the interior corridors designed to attract shoppers. These activities are subject to the approval of appellants' mall managers. Since the opening of the malls in the early 1970's, appellants have maintained a strict policy prohibiting political or religious activities, leafletting, handbilling or soliciting of shoppers on the premises.

Major formed Nu Parable in early 1984 as a low budget performance group using only dance and costume to symbolically convey its message about nuclear war. The costume was a red shirt bearing a black and yellow fallout shelter symbol. The dance involved 10 to 12 dancers, lasted about five minutes and concluded with a "die-in" in which bystanders were invited to join the dancers in lying motionless on the floor for several minutes. The troupe followed its performances with leafletting.

From the beginning, Major envisioned performances at shopping malls. However, Nu Parable's first public dances took place at a U.S. post office, at a public park in Madison, and in the State Capitol rotunda.

In late March, 1984, Major approached East Towne assistant manager Earl Vander Wielen regarding a performance in the mall. Vander Wielen told Major the performance involved potentially controversial issues and refused to approve it.

On April 12, 1984, Major hand delivered a form letter to as many store managers within the mall as he could find. The letter explained the Nu Parable dance, expressed the intent to perform it within the mall on Saturday, April 21, 1984, and solicited the support and cooperation of the merchants. Mall management asked Major to stop distributing the letters, but he refused to do so.

On April 18, 1984, appellants brought this action and obtained a temporary restraining order barring respondents from entering East Towne Mall except as shoppers. About one week later, Major and another Nu Parable member distributed a similar letter to West Towne merchants, expressing the intent to dance there on Saturday, May 5. On May 1, 1984, appellants' complaint was amended to include West Towne and another restraining order was issued covering that premises.

Respondents answered and counterclaimed on May 10, 1984. The counterclaim alleged that appellants' ban on "political, religious and artistic expression" in their malls violated respondents' rights under art. I, sec. 3 of the Wisconsin Constitution. That section provides in pertinent part: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press." In contrast, the first amendment provides in part that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." U.S. Const. amend. I.

Major, Samuel Day, Jr. and others entered East Towne Mall on May 19, 1984, and distributed leaflets providing in part:

Nu Parable wants to dance for you at East Towne Mall but has been legally restrained from doing so by the Ohio corporation which owns the shopping center . . .

[M]ake your views known to the shopkeepers here. Ask them to tell mall manager David Van Dusen that they support free speech at East Towne Mall.

A similar leaflet was distributed on May 26 at West Towne. In each instance, participants leafletted without appellants' consent and refused to leave when requested to do so.

Appellants received a temporary injunction on June 1, 1984, enjoining respondents and all others "acting . . . in concert with them" from entering either East Towne or West Towne except as bona fide shoppers. On June 6 and 20, Day and others distributed "Friends of Nu Parable" leaflets at West Towne and East Towne, respectively. Contempt proceedings were instituted against Day on June 21.

A contempt hearing was held on June 29, 1984. The trial court declined to entertain the merits of the motion and instructed appellants to institute a separate action against Day. We denied appellants' petition for supervisory relief, and a separate injunction action was subsequently commenced against Day and others. Day continued leafletting at both West Towne and East Towne Malls.

On August 9, 1984, Major, William Mutranowski and three others entered East Towne Mall in costume. Mall security personnel asked them not to perform, but the troupe danced and leafletted mall patrons. The press, radio and television covered the event. Several stores within the mall suffered identifiable reductions in sales that day.

On August 21, 1984, the trial court held Major, Mutranowski and the other dancers in contempt for their August 9 activities, and committed them to the Dane County Jail for seven days. Day and others continued to periodically leaflet at both malls as the "Family of Nu Parable," as "Disarmament Now" and as "Friends of The Bill of Rights." There were no further dances in the malls.

The trial on appellants' complaint took place in early January of 1985. On January 23, the court entered judgment permanently enjoining respondents "from performing in any way upon plaintiffs' property" and denying appellants' request for "nominal and compensatory damages." Appellants appealed from all of the judgment which "expressly or impliedly denies or fails to grant all of the relief requested. . . ." Respondents cross-appealed, alleging infringement of their rights of free expression under Wis. Const. art. I, sec. 3.

Appellants also moved to amend the judgment to enlarge the injunction to cover other expressive activities on its property. The court denied this motion and appellants filed a supplemental notice of appeal from that order.

CONSTITUTIONAL QUESTION

Appellants argue that there is no need to reach a constitutional question in order to grant it full relief. They contend that Justice Rehnquist's statement in PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980), that the Court could not "limit the authority of [a] State to exercise . . . its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution" cannot be read as license for state courts to ignore the fourteenth amendment in construing their own constitutions. We agree, but note that PruneYard sets the fifth amendment guarantee against taking property without just compensation and the fourteenth amendment guarantee against deprivation of property without due process of law, not as an absolute criterion, but as an upper limit on state constitutional liberties.

The first amendment recognizes certain expressional rights as an irreducible minimum guaranteed to all citizens against governmental infringement. The fifth and fourteenth amendments recognize the minimum property rights accorded to owners. The Supreme Court in PruneYard permitted California to establish expressional rights under its constitution more expansive than those guaranteed under the first amendment only because it determined that those rights did not transgress areas protected by the fifth and fourteenth amendments. Thus, that case confirms the existence of some space between these minima.

We conclude, therefore, that we may interpret art. I, sec. 3 of our state constitution within the bounds identified by the Supreme Court in PruneYard. Because the relief properly accorded appellants is inextricably interdependent upon the constitutional rights of respondents, we must establish the scope of those rights. The constitutional question is unavoidable.

STATE ACTION REQUIREMENT

The first amendment contains an express state action requirement. It does not safeguard speech against limitations imposed by owners of private property. Hudgens v. NLRB, 424 U.S. 507, 513 (1976); Harman v. La Crosse Tribune, 117 Wis.2d 448, 452, 344 N.W.2d 536, 539 (Ct.App.), cert. denied, ___ U.S. ___, 83 L.Ed.2d 9 (1984). The case at hand, however, involves only the free speech provisions of the Wisconsin Constitution.

The language of art. I, sec. 3 is significantly broader than that of the first amendment, providing that "[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. . . ." The first amendment contains no similar provision. We cannot conclude that the framers of the Wisconsin Constitution included this language for no purpose at all. As in the construction of statutes, we avoid reading a constitutional provision in such a manner as to render any portion of its language surplusage. See Milwaukee Met. Sewerage Dist. v. DNR, 122 Wis.2d 330, 336, 362 N.W.2d 158, 161 (Ct.App. 1984). Therefore, we must determine whether this portion of art. I, sec. 3 prescribes rights of free expression beyond those accorded by the first amendment.

Appellants cite Lawson v. Housing Authority, 270 Wis. 269, 274, 70 N.W.2d 605, 608, cert. denied 350 U.S. 882 (1955), for the proposition that "[sec.] 3 . . . art. I of the Wisconsin constitution, guarantee[s] the same freedom of speech . . . as do the First and Fourteenth amendments of the United States constitution." Appellants argue that a coordinated reading of Hudgens and Lawson compels the conclusion that free speech rights under the Wisconsin Constitution cannot be interpreted more expansively than those accorded by the federal Bill of Rights. Accordingly, they maintain, art. I, sec. 3 also does not protect speech activities against purely private infringements. Respondents do not contest the absence of state action in the case at hand. Thus, appellants contend, there is no litigable issue under the Wisconsin Constitution.

Lawson does not require that result. That case, involving a constitutionally suspect resolution of the City of Milwaukee Housing Authority, plainly implicates only state action. Certainly as to governmental infringements of speech, the Wisconsin and federal constitutional protections are essentially coextensive. Lawson says as much. "If Resolution 513 violates [the first] amendment it follows as a necessary corollary thereof that it also violates either sec. 3 or 4, art. I of the Wisconsin constitution, or both." Id. at 282, 70 N.W.2d at 612. However, the case nowhere holds that state action is a threshold requirement of subject matter jurisdiction under Wis. Const. art. I, sec. 3.

Appellants also note that the Wisconsin Supreme Court in Pauly v. Keebler, 175 Wis. 428, 430-31, 185 N.W. 554, 556 (1921), and in cases following, said that the Wisconsin Constitution's declaration of rights is "a substantially equivalent limitation of legislative power" to the federal Bill of Rights. Given the language of Wis. Const. art. I, sec. 3, providing that "no laws shall be passed to restrain or abridge the liberty of speech or of the press," we cannot help but agree. The minimum protection accorded by art. I, sec. 3 cannot be any less than that accorded by the first amendment. However, a state's constitutional protections of free expression may be greater than those provided under the first amendment. PruneYard, 447 U.S. at 81. Pauly confirms the lower bound of protection, but does not establish an upper limit.

The Wisconsin Constitution should be interpreted "in the light of the circumstances and discussions which led to its adoption, and similar provisions existing in other state constitutions at the time, as well as subsequent adjudications upon the meaning of the words employed." The Wisconsin Central Railroad Co. v. Taylor County and others, 52 Wis. 37, 95, 8 N.W. 833, 855 (1881). There was no debate on the free speech provision at either the 1846 or 1848 Wisconsin constitutional convention. Therefore, the journals of the conventions provide no clues as to the source of or intent of the framers regarding this section. We note, however, that the central emphasis of the preamble to the Wisconsin Constitution is the freedom of the people and the protection of their liberties. The establishment of government is given only secondary emphasis. "By the preamble, preservation of liberty is given precedence over the establishment of government." State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 532, 90 N.W. 1098, 1099 (1902).

However, the wording of art. I, sec. 3 is identical to that added to the New York Bill of Rights in 1821. The Reports of the Proceedings and Debates of the 1821 New York constitutional convention indicate that its free speech provision was intended by its drafters to function only as a check on governmental conduct.

The New York Court of Appeals recently held in a case factually similar to the one at hand that "discernment of the reach of the mandates of our State Constitution, precludes us from casting aside so fundamental a concept as State action. . . ." Shad Alliance v. Smith Haven Mall, 488 N.E.2d 1211, 1217 (N Y 1985). Because Wisconsin's free speech provision was apparently modeled after New York's, we should give this construction great weight. Bablitch Bablitch v. Lincoln County, 82 Wis.2d 574, 577, 263 N.W.2d 218, 221 (1978). Simultaneously, however, we should not adopt New York's construction of its own constitution if we conclude that the better rule would be a different construction. B.F. Sturtevant Co. v. Industrial Comm., 186 Wis. 10, 17, 202 N.W. 324, 326 (1925).

There is no language in the first clause of Wis. Const. art. I, sec. 3 which limits the protection of free expression only from the acts of state government. It is difficult, if not impossible, to reconcile our duty to give this provision full meaning with the state action restriction urged by appellants.

Further, a hidebound requirement of state action poses a number of difficult problems. First, we do not think that the fourteenth amendment directs us to abandon the safeguards envisioned in the fundamental principles of a two-tiered, state/federal system of government. "[With] two distinct governments . . . a double security arises to the rights of the people." A. Hamilton or J. Madison, The Federalist at 266 (M. Beloff ed. 1948). If we were to conclude that a state action requirement exists in Wis. Const. art. I, sec. 3, its protections would be wholly coextensive with those of the first amendment. Under that construction, the fourteenth amendment would downgrade the double protection of basic liberties envisioned in classical federalism to but a single level of security.

Second, while the fourteenth amendment's jurisdictional prerequisite may be construed as maintaining the traditionally independent police powers of the separate state sovereigns in the federal system, this rationale fails to justify a state action requirement in state constitutions. Because Wisconsin denies essential governmental autonomy to its subordinate political units, a state action doctrine cannot be vindicated here as safeguarding a microcosmic federalism.

We conclude, therefore, that Wisconsin's Declaration of Rights provides a freedom of expression complimentary to — not coextensive with — that afforded by the federal Bill of Rights. This right of speech guaranteed by the Wisconsin Constititution [Constitution] is protectable both against governmental and public bodies but also, under certain circumstances, against private entitles as well.

Appellants contend that this result cannot be reached without a companion conclusion that sec. 943.13(1)(b), Stats. (1981) which subjected anyone to fine and imprisonment who "[e]nters or remains on any land of another after having been notified by the owner or occupant not to enter or remain on the premises" is unconstitutional. We disagree.

A statute attacked as unconstitutional must affect the litigant in some way. State v. Holmes, 106 Wis.2d 31, 38, 315 N.W.2d 703, 707 (1982). Wisconsin's trespass statute is not implicated in the civil case at hand. We do not create a constitutional defense to criminal liability for trespass here because no such liability has been alleged.

Given an appropriate criminal trespass case, however, such a defense could be created without invalidating the statute. All statutes are presumed constitutional. In Matter of Guardianship of Nelson, 98 Wis.2d 261, 266, 296 N.W.2d 736, 738 (1980), and we must uphold a statute where we can. State ex rel. Chobot v. Circuit Court, 61 Wis.2d 354, 367, 212 N.W.2d 690, 696-97 (1973). Therefore, a criminal statute may be construed, without invalidating it, in such a way that is not applied in a violation of a citizen's constitutional rights. Id. at 359, 212 N.W.2d at 693.

Private property rights may be reasonably regulated to promote the public welfare. Just v. Marinette County, 56 Wis.2d 7, 15, 201 N.W.2d 761, 767 (1972). We believe this concept underlies sec. 943.13(1)(b), Stats. (1981), and, in the proper case, could limit the owner or occupant's statutory right to exclude.

THE BALANCING OF COMPETING INTERESTS

Private property is always held subject to the state's police power, Eggebeen v. Sonnenberg, 239 Wis. 213, 218, 1 N.W.2d 84, 86 (1941), and its use may be reasonably regulated, within constitutional bounds, in the interest of the public welfare. Just, 56 Wis.2d at 15, 201 N.W.2d at 767; PruneYard, supra, 447 U.S. at 81. A number of courts have found that such restrictions may be reasonably imposed on certain property use in order to protect rights of free expression. See e.g., State v. Schmid, 423 A.2d 615 (N.J. 1980); Robins v. PruneYard Shopping Center, 592 P.2d 341 (Cal. 1979), aff'd sub nom 447 U.S. 74 (1980). We are persuaded to do likewise.

However, free speech rights are also subject to reasonable regulation, State v. Zwicker, 41 Wis.2d 497, 510, 164 N.W.2d 512, 518, appeal dismissed, 396 U.S. 26 (1969), and the elimination of the state action barrier by no means renders those rights absolute. Therefore, we must strike the best balance within this constitutional framework between recognized interests in the private property and the interest in free expression exercised upon such property.

The greatest advantage of such direct balancing is its adaptability to changing circumstances and socioeconomic conditions. This flexibility is important in keeping the Wisconsin Constitution vital. The Wisconsin Supreme Court in Borgnis v. Falk Co., 147 Wis. 327, 349-50, 133 N.W. 209, 215-16 (1911), noted that:

When an eighteenth century constitution forms the charter of liberty of a twentieth century government must its general provisions be construed and interpreted by an eighteenth century mind in light of eighteenth century conditions and ideals? Clearly not. . . .

[T]he changed social, economic and governmental conditions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential factors in the settlement of problems of construction and interpretation.

However, we must also be mindful of two important disadvantages of the balancing approach. First, guidance to lower courts and citizens concerning what kind of speech activities and property interests are likely to prevail is initially uncertain, creating the potential for a surge of litigation. Second, there is the appearance of a reallocation of a traditionally legislative function to the courts. We do not believe either disadvantage is fatal to our choice of the balancing approach here.

First, the general contours of our decisional process can be framed in terms of a multi-factor test. The process will quickly become both clearer and established as precedent as the law is applied in a few subsequent cases. Our review of the case law in those states which have adopted balancing tests has not disclosed a "floodgates" problem caused by the choice of that analysis.

Second, we are well aware that the courts of Wisconsin lack both the constitutional authority and the functional capacity to fulfill a legislative role. However, the full protection of constitutional rights has always relied more upon the judiciary's powers than on statutory protections. This is so in the free speech context because legislatures, as majoritarian institutions, rarely provide adequate safeguards for the expression of potentially unpopular minority views. "'Just as the Legislature cannot abridge constitutional rights by its enactments, it cannot curtail them through its silence. . . .'" (Citation omitted.) Schmid, 423 A.2d at 627.

Further, the people — through the Legislature — are ultimately capable of influencing the outcome of cases such as the one at hand. The legislature may establish statutory presumptions regarding those nonconstitutional elements contributing to a result in a given case. Additionally, the Wisconsin Constitution, despite its status as a fundamental charter of governmental powers and private rights, is readily susceptible to amendment or revision in response to public mandate. Wis. Const., art. XII, secs. 1 and 2.

Several other state courts have weighed conflicting speech and property rights and struck a functional balance between them. Schmid, supra; Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981); and Alderwood Assoc. v. Wash. Envir. Council, 635 P.2d 108 (Wash. 1981). The Alderwood approach is somewhat confusing and has been criticized both for its logical inconsistencies and the sharp 4-1-4 split of the court. Tate adopts the Schmid analysis.

The balancing test crafted by the Supreme Court of New Jersey in Schmid is noteworthy. That court

derive[d] some guidance from certain of the Supreme Court cases, such as Marsh v. Alabama, [ 326 U.S. 501 (1946)], Lloyd Corp. v. Tanner, [ 407 U.S. 551 (1972)], and PruneYard Shopping Center v. Robins, supra, which recognize generally that the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property.

Id., 423 A.2d at 629-30. The Schmid court evolved a multi-factor test to determine the extent to which the use of private property could be restricted to accommodate the rights of free speech exercised upon it. That test weighed "(1) the nature, purposes, and primary use of such private property, generally, its 'normal' use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property." Id. at 630. The Schmid court also suggested that any suitable time, place and manner restrictions imposed by the property owner should be included in the Another factor suggested in Schmid also warrants inclusion: the availability of alternative media and fora for the exercise of the expressive activity.

The Schmid test accounts for all of the factors we deem important to the resolution of the case before us. We adopt it.

(1) " Normal" Use of The Property

Our analysis begins with an examination of the primary, "normal" use of the private property in question: the East Towne and West Towne Malls. The trial court, in ruling on the permanent injunction, said:

The plaintiffs are in business to make a profit and their profit is derived primarily from leasing space to the mall stores and from deriving a percentage of revenue based upon the volume of sales of each of the mall stores. In order to attract customers into the mall, the plaintiffs spent a great deal of money and effort to promote the mall by the establishment of walkways, fountains, greenery and seating, all in the common area, in an effort to create an attractive, restful and non-disruptive atmosphere which would hopefully put the shoppers in a mood to patronize the mall stores. In addition, the plaintiffs, together with the Merchants Organization, put on various promotions in an effort to attract shoppers to the mall. These attractions fall into three categories. In the first category are attractions which the merchants themselves pay for. This includes entertainment such as magicians, soap stars and celebrities. In the second category are attractions which the sponsor of those attractions pay to be allowed to produce. These consist of, for example, antique auto shows, boat shows and floral shows. In the third category fall such attractions as girl scout displays and fashion shows which are shown at no cost to the merchants or to the people putting on the attractions. The purpose of such attractions is to draw customers and hopefully put them in the mood to spend money at the mall stores.

These findings are amply supported by the record and are not clearly erroneous. Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct.App. 1983).

Some state courts have labeled shopping malls the functional equivalent of public property. We cannot go that far in this case. There is some evidence that appellants' management initially characterized the malls as "community centers" and that a portion of regular traffic is unrelated to shopping. This evidence of limited public uses propels the East and West Towne Malls some distance along the Marsh continuum requiring increasing accommodation of the individual rights of the public on these premises. However, the malls' primary use here is in no sense the functional equivalent of public sidewalks or the traditional town square. The trial court's characterization paints a fundamentally accurate picture of the properties' "normal use."

(2) Nature of Public Invitation

The record shows that the nature of appellant's invitation to the public to enter and use the shopping malls largely parallels the primary use to which the property is put. That is, advertising invites the public into the malls primarily to patronize the tenant stores. The trial court also found what could be called a "negative invitation" in the form of a "firm policy" of prohibiting political campaigning, religious activities, soliciting and the distribution of handbills in the mall. These findings are not clearly erroneous. Noll, 115 Wis.2d at 643, 340 N.W.2d at 577.

However, there is nothing in the record to show that the essence of these invitations and prohibitions was express. Nor is there evidence that appellants actively excluded persons seeking to enter the mall for purposes other than shopping if those purposes were not among those prohibited by management. However, even though a large-scale public presence is essential to the realization of appellants' commercial ends, the record does not demonstrate the existence of an open, unqualified invitation to the public, either express or implied.

(3) Relation of Nu Parable Dance to Other Mall Use

This factor raises the question of whether respondents' expressional activities are incompatible in any sense with both the private and public uses of the shopping malls. That is, is there anything in the record to suggest that respondents' performance was discordant with appellants' professed commercial goals or the use of their property to those ends?

We have concluded that the trial court correctly found that the primary use of appellants' property was to promote the patronage of the tenant stores. They encourage this effect through a significant investment in the maintenance of pleasant surroundings, promotional activities and various forms of entertainment. Thus, the effects of both the style and content of respondents' expressional activity on mall patronage must be considered.

Respondents' professed purpose in performing its dance is to convey a thought-provoking image of the horrors of nuclear warfare. The dance concludes with a "die-in," when spectators are invited to join the dancers in crumpling to the floor. Appellants' central concern is that this performance is substantially unlike other activities within the malls. They contend that it disturbs and drives away shoppers the malls were created to attract. The trial court agreed, finding that — on balance — appellants had successfully shown that the Nu Parable dance interfered with the use and harmed the economic value of their private property.

Review of this determination implicates mixed questions of fact and law. We apply a "clearly erroneous" standard to the factual portion of the court's determination. Noll, 115 Wis.2d at 643, 340 N.W.2d at 577. The connected questions of law we review independently. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).

The trial court found that when respondents performed at the East Towne Mall on Thursday, August 9, 1984, they "created a definite economic impact . . . upon the mall merchants who were in proximity of the performance, which in turn caused an economic impact upon the [appellants.]" The court based this finding upon the testimony of a number of East Towne store managers to the effect that their sales for August 9 were depressed below average daily receipts by varying, but identifiable, amounts. It noted that none of those witnesses could give an explanation other than the performance of the dance to account for this adverse effect. The court found this testimony credible, and also admitted into evidence bookkeeping records documenting these dips in sales.

Respondents suggest that the depressed sales on August 9, 1984, could just as easily be attributed to the presence of mall security guards and Madison Police officers during and after the dance. However the record contains no evidence to support this argument.

Appellants also introduced the results of a number of recent public opinion studies — one conducted in the Madison market — to show that shopping mall activities by special interest groups actively discourage shoppers from entering or remaining in the malls. Respondents do not challenge the admissibility of this evidence, but mount an extensive attack on both the reliability of the surveys and the conclusions drawn from them.

We are mindful of the many faults and limitations of public opinion research. Nevertheless, such limitations go only to the weight and credibility such evidence is to be given. Here the trial court — as factfinder — chose to give the results of these studies some weight. We defer to its decision to do so. State v. Higginbotham, 110 Wis.2d 393, 405, 329 N.W.2d 250, 256 (Ct.App. 1982).

The record contains ample, substantially uncontroverted evidence to support the court's finding that the August 9 dance adversely affected sales at East Towne. We conclude, therefore, that this finding is not clearly erroneous. Noll, 115 Wis.2d at 643, 340 N.W.2d at 577. Because appellants have demonstrated an impairment of the use and value of their property, this case distinguishes itself from many of the factually similar cases in other states.

The conclusion is unavoidable that the Nu Parable dance was disruptive to the primary use of appellants' property and was not related in any way to appellants' limited public invitation to shop on its property. It is possible, therefore, that respondents' conduct rises to the level of an abuse of their free speech rights for which they are responsible under art. 1, sec. 3. However, appellants do not make this argument and we will not consider it here. Dumas v. State, 90 Wis.2d 518, 523, 280 N.W.2d 310, 313 (Ct.App. 1979).

(4) Time, Place and Manner Restrictions

Though we have said that an owner of private property may be constitutionally obligated under certain circumstances to honor the free speech rights of others, his private property and free speech rights must also receive a measure of protection. PruneYard, 447 U.S. at 81. Therefore, the owner of such property is entitled to impose reasonable rules and conditions for the individual exercise of expressional rights upon that property.

Appellants contend that recognition of respondents' free speech rights on private property under Wisconsin's constitution would necessarily deny appellants' rights under the first, fifth and fourteenth amendments. We disagree. Private property rights are no more absolute under our constitutions than the rights to free expression. See In Re Schroeder Hotel Co., 86 F.2d 491, 494 (7th Cir. 1936) (Rights under constitution and its amendments must be exercised with reasonable regard for conflicting rights of others, and there is no right so absolute that it may be exercised under any circumstances and without qualification). We conclude that properly crafted time, place and manner regulations can accommodate free expression while affording an owner's property interests ample protection.

However, appellants also assert that respondents' access to the malls might impair the mall owners' own first amendment rights. They argue that the state may not force one person to subsidize another's exercise of free speech and suggest that mall patrons might attribute respondents' political message to appellants.

The United States Supreme Court in PruneYard noted that Wooley v. Maynard, 430 U.S. 705, 717 (1977) — stating the rule that persons have a first amendment right not to help at their expense to spread a message with which they disagree — was distinguishable on several grounds. First, Wooley was a case in which the government prescribed the specific message required to be displayed on the appellant's private property. Where no such message is dictated, there is no danger of governmental discrimination for or against a particular message. Second, the shopping mall is not property held for the personal use of appellants, it is open to the public. Thus, it is less likely that public speech there will be identified with the owners. Finally, the Court held that the mall owners were free to "expressly disavow any connection with the message by simply posting signs in the area where the speakers for handbillers stand." PruneYard, 447 U.S. at 87. A number of these factors (and the PruneYard thesis in general) were again considered in Pacific Gas Elec. v. California P.U.C., ___ U.S. ___, 89 L.Ed.2d 1 (1986), and appear vital. They also appear applicable to the case at hand.

Appellants argue, however, that the results of Dane County, Flint, Michigan, and Hartford, Connecticut public opinion studies demonstrate that more than 25% of the surveyed shoppers identify speech activities within a shopping center with its owners. Nonetheless, the record contains no evidence that any mall patron mistook the Nu Parable dance for a demonstration of appellants' political views. Nor do these studies account count for the potential effects of dissociative signs or statements, or other reasonable time, place and manner restrictions which could identify the message as the speaker's alone. The minimal burden of such regulation or disassociative activity, where necessary, appears commensurate with an owner's accommodation of individual rights — required by March, Lloyd Corp., and PruneYard — upon the private property he opens to the public.

Respondents argue that appellants' existing scheme of screening and accommodating shows, displays and promotions amounts to time, place and manner regulation, and that it has proven successful in protecting their commercial interest. We agree. Because appellants retain the full right to reasonably regulate the use of their properties, their first, fifth and fourteenth amendment rights are adequately protected and not actionably infringed by our recognition of a right of free speech on that property.

(5) Alternate Communications Channels

Finally, we consider whether there exist feasible and convenient alternative means by which appellants could meaningfully engage in the same expressional activities. The Schmid court noted that

[w]hile the presence of such alternatives will not eliminate the constitutional duty, it may lighten the obligations upon the private property owner to accommodate the expressional rights of others and may also serve to condition the content of any regulations governing the time, place and manner for the exercise of such expressional rights.

Schmid, 423 A.2d at 630.

The record shows that Nu Parable has had a fairly extensive history of public performances. Its first performance occurred at a United States post office in Madison as part of a "tax day rally" in April, 1984. Subsequently, the group danced at a public park off the State Street Mall in Madison; in the State Capitol Rotunda; on the steps of the city-county building in Madison; atop Bascom Hill, on the Library Mall, in Camp Randall Stadium and in the Memorial Union at the University of Wisconsin; on the grounds of East and West High Schools in Madison; at the Dane County Airport terminal; at the Madison Civic Center; and at two locations in Wausau.

We take judicial notice of the fact that a number of these sites have, over the years, become traditional fora for the expression of ideas, public discourse and debate. Frederick v. Hotel Investments, Inc., 48 Wis.2d 429, 433, 180 N.W.2d 562, 564 (1970) (Judicial notice may be taken of matters of common knowledge). The preeminent role certain of these fora play in public discourse in the Madison community may make the significant weight we accord this factor unique to the case at hand. The malls here are not the functional equivalent of a town square.

The record also contains extensive evidence regarding the various mass media potentially available to respondents in Dane County.

The audiences reachable through any of these channels might not be as numerous or concentrated as those available in a shopping mall environment. Nonetheless, because of the number and pervasiveness of these channels, we conclude that respondents' ability to publicly communicate their message is not foreclosed or even seriously limited by either the enforcement of the injunction or reasonable regulation of mall access for expressive activities other than "performance."

Our review of the preceding five factors convinces us that the balance tips in favor of appellants' asserted property rights. The Nu Parable performance has demonstrably conflicted with and impaired the primary use and value of appellants' private property. Further, there exist adequate alternate channels and fora for respondents' expressive activities. Therefore, respondents were properly enjoined.

LIMITATION OF INJUNCTIVE RELIEF

Appellants challenge the court's refusal to amend the judgment to enlarge the injunction to cover expressional activities beyond "performances" on their property. They express concern that other forms of expressional activity by respondents pose a threat of harm to their property interests similar to that demonstrated in connection with the Nu Parable dance.

The grant or denial of injunctive relief is within the trial court's sound discretion and will not be reversed on appeal without a showing of an abuse of discretion. Mercury Record v. Economic Consultants, 91 Wis.2d 482, 500, 283 N.W.2d 613, 622 (Ct.App. 1979). "To find an abuse of discretion [we must determine] either that discretion was not exercised or that there was no reasonable basis for the trial court's decision." Wisconsin Public Service Corp. v. Krist, 104 Wis.2d 381, 395, 311 N.W.2d 624, 631 (1981).

In denying appellants' motion, the court noted that all the evidence received at trial

was directed to whether or not the Nu Parable people should be allowed to perform in the malls, and the Court decided . . . that they should not be. . . .

Now, I did not concern myself with leafletting or petitions, and I had no reason to do so. . . . [These] matters are now being pursued, at least in part, in another branch of the Circuit Court. . . The court believes it would be a much more orderly process to continue pursuing your requested relief in the other branches of the Circuit Court.

We conclude that the court exercised its discretion. We now must determine whether there was a reasonable basis for its decision.

Injunctive relief is to be tailored to the necessities of the particular case. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61 (1975). This is especially true regarding permanent injunctions. Here, though the record discloses evidence of continued leafletting by individuals other than respondents, appellants' proof of actual economic impact was linked wholly to respondents' August 9, 1984, dance at East Towne Mall.

Further, the case brought by appellants against Samuel Day, et al., was then pending in another branch of the circuit court. That case dealt directly with leafletting and other forms of non-dance expression. The defendants in that case were among those identified as working "in concert with" respondents in the instant case.

We may not substitute our discretion for that of the trial court. Barrera v. State, 99 Wis.2d 269, 282, 298 N.W.2d 820, 826 (1980), cert. denied, 451 U.S. 972 (1981). We may, however, search the record for reasonable bases sufficient to sustain the court's decision. Loomans v. Milwaukee Mut. Ins. Co., 38 Wis.2d 656, 662, 158 N.W.2d 318, 320 (1968). Given the factors noted above, we conclude that the record provides a reasonable basis for the court's decision. It did not abuse its discretion by limiting injunctive relief to the established threat.

DAY CONTEMPT

Finally, appellants contend that the trial court erred by refusing to entertain contempt proceedings against Samuel Day arising from his distribution of handbills in East Towne Mall on June 20, 1984. This is so, they argue, because Day thereby violated the temporary injunction ordered by the court, and because "[n]ormally, the order to show cause [in a contempt matter] should be filed in the same action in which the order allegedly violated was filed." Dalton v. Meister, 84 Wis.2d 303, 309, 267 N.W.2d 326, 329 (1978).

The exercise of a court's contempt power is discretionary. In re Paternity of D.A.A.P., 117 Wis.2d 120, 127, 344 N.W.2d 200, 203 (Ct.App. 1983). We will not upset the court's decision to dismiss a contempt proceeding unless the court's discretion was not exercised or there is no reasonable basis for the court's decision. Krist, 104 Wis.2d at 395, 311 N.W.2d at 631.

The transcript of the contempt hearing shows that the court was seeking to limit the issues at trial. It said:

We've got one action against Robert Major and Nu Parable, which hopefully is proceeding to trial. The Court has ruled that it's illegal to distribute pamphlets, as Mr. Day and other people are doing at East Towne or West Towne. That has nothing to do with Major or Nu Parable. If Mr. Day or anybody else out there distributing pamphlets [sic], there's a restraining order against him. . . .

I just can't see why you have to allege the "in concert" theory when you've got an individual who is restrained from doing this, that you can bring into court . . . it's cluttering up the case that we have going against Major and Nu Parable.

I still feel . . . that the proper procedure would be for you to start [a] separate action . . . against Sam Day . . . and bring him into this court or any other court seeking contempt for violation of the restraining order. . . .

It is apparent that the court exercised its discretion. We now must determine whether the basis for its decision was reasonable.

The record discloses evidence of substantial leafletting activity in the malls by more than a dozen individuals on a number of occasions after entry of the restraining order and temporary injunction. The potential existed for a large number of contempt motions. Because contempt power should be used only after great deliberation, State v. Braunsdorf, 98 Wis.2d 569, 587, 297 N.W.2d 808, 816 (1980), the court could reasonably have perceived the potential for extensive collateral contempt proceedings as a genuine threat to the prompt and orderly determination of the central issues in the case before it.

We may not substitute our discretion for that of the trial court. Barrera, 99 Wis.2d at 282, 298 N.W.2d at 826. Because there was a reasonable basis for the court's disposition of the Day contempt motion, we sustain the court's decision.

By the Court. — Judgment affirmed.