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California Supreme Court Again Upholds First Amendment Activity on Shopping Center Property

Published on December 25, 2007, by in Uncategorized.

On December 24, the California Supreme Court ruled 4-3 that its 1980 Pruneyard decision is still good law. That decision had said that because shopping center walkways are the social equivalent of the old traditional town square, therefore distributing leaflets, petitioning, and related free speech activity must be allowed, even though the shopping center is private property.

The new decision is Fashion Valley Mall v National Labor Relations Board, S144753. The particular kind of free speech activity concerned union activists passing out leaflets, suggesting a boycott of one particular store in that shopping center. The case had been in the courts since 1998.

The majority consisted of Chief Justice Ronald George and Justices Carlos Moreno, Joyce Kennard, and Kathryn Werdegar. The dissent was written by Justice Ming Chin and signed by Justices Marvin Baxter and Carol Corrigan. The dissent is fierce. It says, “Pruneyard was wrong when decided. In the nearly three decades that have since elapsed, jurisdictions throughout the nation have overwhelmingly rejected it (this is a reference the fact that most other State Supreme Courts have interpreted their state’s free speech provisions to not apply to any private property).” The dissent also says, “The time has come to recognize that we are virtually alone, and that Pruneyard was ill-conceived…Even if we stubbornly maintain our position of ‘magnificent isolation’ in the face of this tide of history, we should not carry Pruneyard to the extreme of forbidding private property owners from controlling expressive activity on their property – urging a boycott of its tenants – that is inimical to the purpose for which the property is being used…Assuming free speech rights exist in shopping centers, the fact remains that they are not Hyde Park in London, Central Park in New York, or the National Mall in Washington, D.C.”

8 Responses

  1. John P Slevin

    This ruling to uphold Pruneyard does not seem to mitigate against the serious erosion done to the rights of those who seek to engage in expressive activities at large shopping centers.

    I’ve been litigant in more than a dozen such cases in California, and worked as a paralegal on over one hundred such cases. Those cases were in the courts between 1996 to 2003.

    What is troubling in this decision is the absence of anything to address the means by which shopping center operators evade the intent of Pruneyard. The main tool is written “time, place and manner” rules.

    For example, a petitioner attempting to place a party or candidate on the ballot presumably still will find that many large shopping centers effectively prohibit expressive activity, and/or grant such leeway to potentially biased shopping center employees that there is the very real potential for prejudice against the content of the petition or cause being expressed.

    It is noteworthy that lawyers for the losing side in this case have made it clear that they see no problem with shopping centers enforcing the time, place and manner rules they already have in effect, and those are the root of the ongoing problems.

  2. pd simon

    hello, is there anywhere i can learn more about this important issue, especially in regard to the “time, place, and manner” conditions cited above? Much appreciated.

  3. Steve White

    I’m not a lawyer and don’t pretend to know all the issues, but this is great law, because shopping malls are very close to what was once the commons, and protecting free speech there is critical.

    IF the rest of the country thinks otherwise, sad for them. It’s not like some terrible disaster is going to befall us because a few people decide to picket a particular store, but losing the right to free speech in the most commonly used public space IS a disaster.

    I am from Alameda County, and I note two of the three dissenters were formerly Alameda County proseuctors, Corrigan and Chin. By the way, Chin has violated conflict of interest rules more than once, been well documented, he appeared at a fundraiser for a relative, did not recuse himself from a case which involved the Alameda County DA’s office, where is son works, did not recuse himself from a Public Records Act case about disclosing public employee salaries, (his son’s for example).

    I am not surprised he went this way, would have been surprised if he did not.

  4. John P Slevin

    pd simon,

    You can google “time place manner” and “pruneyard v robins” the latter being the California Supreme Court case which was appealed by the shopping center, to the US Supreme Court decision.

    I’ve included some relevant links below. In California, our side (pro expressive rights) won some cases all the way up to and through the California Supreme Court before and after Pruneyard was decided. The current court cases have revolved around whether or not Pruneyard should be considered “settled law” and this in fact has been the rationale for the anti-Pruneyard justices to refuse to go the whole way and to reverse themselves on Pruneyard. Nevertheless, the current California Supreme Court majority has whittled down Pruneyard protections and specifically has used reinterpretations of time, place and manner restrictions to do so. Essentially, they have allowed retailers to write such prohibitive time, place and manner rules to effectively prohibit speech.

    There are common misconceptions about what the US Court decided in Pruneyard. Essentially, the US Supremes left the decision in the hands of the California courts, and instructed that other states were free to make their own laws in this area. So, it upheld California’s decision, but not necessarily the rationale for that decision.

    The California decision sought to apply protections to expressive activities carried out on certain types of private property, namely, so-called public fora and specifically including large shopping centers. The rationale was that in modern society, the commons has disappeared, and been replaced by privately owned shopping centers and this necessitates protecting speech or expressive activities carried out on large scale shopping center properties.

    The California court was relying on long established First Amendment law which protects such activities on government property and was applying those protections to certain types of private property.

    While Pruneyard concerned itself primarily with privately owned property, some public property managers also seek to limit and/or prohibit expressive activities on publicly owned property, like in parks, state fairs, postal premises, etc.

    Here’s one case where ACLU won for me and another person who were arrested in a public park for petitioning activity at a county fair http://www.acluutah.org/resolutions.htm#slevin

    Most of the more recent California cases effectively were stymied after the California court last visited the issue in Young et al v Raley’s which you can read the case at the link below (sorry, it’s a very long hyperlink ) and in that case first accepted our case for review, sat on it for more than two years, then issued a statement saying they’d decided not to review it after all (before doing that, they issued a ruling in a San Francisco case where they upheld the rationale of Pruneyard while ruling against expressive activities rights claimed by a tenant’s group—had they applied the same logic in Raley’s, they would had to have protected expressive activites, so they simply decided to dodge our case. Upshot of all these cases was we preserved most Pruneyard protections in California, in a general sense, but the court cleared the way for more whittling away by retailers using very restrictive time, place and manner rules.

    http://72.14.253.104/search?q=cache:kbHMSue0x1AJ:caselaw.findlaw.com/data2/californiastatecases/C033172.DOC+young+et+all+v+raley%27s&hl=en&ct=clnk&cd=4&gl=us&client=firefox-a

  5. Andy

    It is great to see a victory for free speech, petition rights, and ballot access!

    Also, it should be pointed out that almost all shopping centers recieve some sort of tax payer funding and/or benifits and that some are even owned in part – or in full in some cases – by government. Do some homework on the issue and you’ll find that the line between what is government and what is “private” is getting more and more blurred all the time.

  6. Robert

    Sounds like they are trying to use “private property rights” to retract our free speech rights by giving public land to privately owned property.
    The way it should be is if you build a mall on public land that was given to you, you ought to be required to respect the free speech rights protected by the state constitution. Also, if you get any sort of tax breaks. Respect for the right of free political, religious, and expressive speech should be an automatic requirement for any mall or shopping center seeking tax breaks or public owned land.

  7. Sylvia De Rooy

    On December 22 I was in front of a Costco selling raffle tickets for a CASA fundraiser. The manager, who had given CASA permission to do so, came out and said that we have to move further away from the entrance where we had been placed by him earlier. He said that someone had called corporate headquarters and complained that if Costco did not allow the Democratic Party to table there (apparently at an earlier point Costco had refused to allow political parties to table) then CASA should not be allowed to fund raise. We, as a result, ended up standing out in pouring rain where no customers were willing to stop so we had to fold our tents and leave. Can this ruling be the reason why this person called Costco corporate and if so how would it apply to the above described situation? Thanks to anyone who may be able to help.

  8. John P Slevin

    Sylvia De Rooy,
    I do not know in which state you had this Costco experience.

    Costco has been one of the major litigants seeking to prune the Pruneyard decision and resulting expressive rights.

    We had extensive litigation with Costco between 1998 and 2003, and because of the number of cases, essentially most cases were put on hold until this one was decided http://www.metnews.com/articles/cost030402.htm

    The provocation for the litigation was Costco changing their written time, place and manner rules in such a way as to effectively preclude expressive activities, especially targeting petition and other political activities.

    Costco claims many “rights” to avoid compliance with Pruneyard. One, they require the submission of a written application, and signing a statement that one agrees to abide by Costco’s rules. They have a blanket ban on many “holidays”, claiming their stores are too busy on those days to allow for activities outside. They designate an area for the activities. Finally, they say that more than one third of their California stores are exempt from having to allow any expressive activities on any day because such stores are so-called “stand alone” stores, and not part of any shopping center (the Pruneyard decision came from a case at a shopping mall).

    Much of the litigation pertained to so-called “content based discrimination”. We pointed to Costco’s practice of allowing groups like the Salvation Army to engage in expressive activities at Costco. Costco’s first actions were to try and ban all activities. We obtained court orders allowing the activities to continue, so Costco relented on that course. They then rewrote their rules, effectively making it unlikely one could be approved at all, or for more than a handful of days throughout the year and on days of Costco’s choosing.

    If Costco is seen to deny access to one group (like your Democrats) and to allow another group, like your own organization, it at least gives the appearance of content based discrimination.

    If you want to participate in future activities at Costco, probably your easiest way is to inquire at the particular store(s) where you want access…assuming they haven’t recently changed their policies, you will be given a list of written rules plus a few pages of an application form. You then fax those to Costco’s main office in Washington state at the number provided, and within a few days they fax back either an approval or a denial. You will be asked to select dates subject to Costco’s restrictions on a limited number of consecutive days and no consecutive weekends and excluding many days of the year as “holidays”.

    Perhaps you obtained your original permission directly from the store manager…if that was the case, that was the problem, because Costco doesn’t want their store managers to make those decisions, in part to avoid the appearance and/or reality of content based discrimination.

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