California Supreme Court: Feel Free To Protest Inside The Mall

Hey, Californians: You have 1st amendment rights inside privately owned malls, says the Supreme Court of California. They’ve ruled that malls are a public forum and management cannot restrict speech based on content, says the NYT:

In a 4-to-3 decision, the court said a San Diego mall violated California law protecting free speech when its owners barred protesters from distributing leaflets in front of one of the mall’s stores, asking shoppers not to give the store their business.

“A shopping mall is a public forum in which persons may reasonably exercise their right to free speech,” Justice Carlos R. Moreno wrote in the majority opinion.

Justice Moreno said shopping malls were entitled to enact and enforce “reasonable regulations of the time, place and manner of such free expression,” to avoid a disruption of business.

“But they may not prohibit certain types of speech based upon its content,” he wrote, like speech urging a boycott of stores.

The case itself dealt with a labor union that urging shoppers to boycott a particular store.

Court Ruling on Protests Curbs Malls in California [NYT] (Thanks, p!)
(Photo:Atari Gracinha & Marco)

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  1. Curiosity says:

    Note the actual opinion may be found at: [www.courtinfo.ca.gov]

  2. just_paranoid says:

    that is HUGE! now you will easily be able to shame a store into doing the right thing if they wrong you and refuse to make good.

  3. Abusiveelusive says:

    This is 100% BS.

    Whatever happened to property rights?

    The freedom of speech is related to the government not regulating it. Private businesses on private property can do whatever they want.

  4. Freedomboy says:

    Not really “whatever they want”.

    Property rights are over-used to conceal that it really means = “money wins”

  5. jeffjohnvol says:

    Another blow to property rights.

    Pretty soon you won’t be able to remove somenoe from your front porch preaching Jesus because it will violate their free speech rights.

    Free speech is critically important to a free society, but so are private property rights.

  6. Curiosity says:

    A short summary of the issue:

    Actually the case deals with the fact that California law permits the exercise of speech and petitioning in private shopping centers, subject to reasonable time, place, and manner rules adopted by the property owner, but that this is not a content based restriction.

    Here the shopping mall requires a permit applicant to promises to refrain from conduct “Urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center.”

    Everyone (even outside of CA) should look to the Supreme Court case Marsh v. Alabama (1946) 326 U.S. 501, 502, which states “The more an owner, for his advantage, opens up his property for use by the
    public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” (Id. at p. 506.) But also look to specific state and federal example which restrict and specify the types of activities.

    However, this decision actually highlights that a state constitution can provide more protection (as in this case for freedom of speech) than even the Federal Constitution. Pruneyard, 23 Cal.3d 899, 902. Note also that Pruneyard is not applicable throughout the nation.

  7. DeeJayQueue says:

    @jeffjohnvol: The difference is that you don’t invite the public onto your front porch.

  8. dlmccaslin says:

    @Abusiveelusive:

    I’m calling BS. What you’re saying is that it’s essentially okay to protest in front of a store on a public street, but not in a shopping mall, even though shopping malls, by their very nature, act as access points for businesses. What you’re implying is that the store is not paying rent, but a protection fee against protests from citizens and unions. Actually, it wouldn’t be too bad to see a few shopping malls go down for racketeering charges.

  9. just_paranoid says:

    @jeffjohnvol: i think they are saying because its a mall, its more of a public property. obviously your home isn’t advertising, practically begging/tricking people into shopping there.

  10. Curiosity says:

    @Abusiveelusive:
    Nothing happened to property rights, except in this case the property owner has in a sense given some of them to the public in order to encourage the public to come onto the property to do business. Otherwise, the public may not come onto the property, since I assume they like neither being in danger of their life (if there are dangers on the property) or willing to give up their freedoms say to talk about how shoddy the articles of clothing are.

  11. jeffjohnvol says:

    @DeeJayQueue:
    I invite guests but don’t invite solicitors. The Mall owners invite customers but doesn’t invite protesters.

    If it is such a public forum, why can’t I go there and set up a business selling wizzits and wazzits without the mall permission? The mall may not be able to limit their speech, but they sure as hell should be allowed to ban whomever they want for whatever reason.

    A local restaurant in Louisville denied OJ Simpson service (Jeff Ruby’s) at last years Derby. As a private business, they invite customers but reserve the right to deny access to whomever they want. BTW, it wasn’t a racial thing, because OJ’s table was given to Michael Jordan’s party.

  12. jeffjohnvol says:

    @just_paranoid: So….if its public, why doesn’t tax money go to pay for the electric bill or maintain the locking and unlocking of the doors. I understand you are interpretting their ruling, I just disagree. I think this would get shot down if it went to the federal supreme court.

    If it were an open mall, with streets in between stores, I could buy it, but not in a mall that is privately owned.

  13. jeffjohnvol says:

    @curiosity: Thank you for a very informative post. Those are some interesting facts.

  14. Curiosity says:

    @jeffjohnvol:

    Your opinion is supported by the dissent (page 29 and on), however you might want to note that the Supreme court while powerful, is limited in state cases since state law and its constitution apply (see [en.wikipedia.org]
    ). Obviously this is an “it depends” question and a bit depends o nthe notion that a state (like Ca) is a sovereign like the federal government (see [en.wikipedia.org]).

  15. nequam says:

    @Abusiveelusive: Congrats for regurgitating the argument used by the owners of racially segregated lunch counters. Other commenters have pointed out why malls (and restaurants, theaters, etc.) are different than other types of private property.

  16. SBR249 says:

    @jeffjohnvol: note that the judges actually said the mall was a public forum not public. That implies that it’s a place where the public can express their opinions, not a place where you can randomly go and set up a lemonade stand.

  17. cde says:

    @jeffjohnvol: The malls get tax breaks and incentives, as well as the city subsidizing the construction of the mall. Hence, the semi-public status. Or would you allow private business owners to deny people access for race/age/sex/religion/disability just cause they are private?

  18. jeffjohnvol says:

    @cde: Governments give tax incentives because it brings in more taxes. As far as denying based on race etc, private business owners do that today. Not that I agree with it whatsoever, but the boy scouts can deny a gay person from being in the organization, or a Woman’s gym can deny men. You can also form organizations for a minority support group, but not for a white support group, not that I would want to do any of those things.

    I think “curiosity” described the argument best.

    I would be interested in hearing whether nor not it is against the law to prohibit their speech (as indicated by the court), but is it still allowable to ban them from the mall?

  19. jamesdenver says:

    This IS a good thing. Private companies own huge swaths of real estate – changing your neighborhoods and cities into private companies.

    To be able to hand out political flyers, protest, loiter, or do any legal public activity in a LARGE private space designated as a public gathering spot is a GOOD thing.

    People and cities should oversee and control how much land they give away with tax income dollar signs in their eyes to private companies – or soon you’ll lose real streetscapes to Downtown Disney. (having just been at the one in Anaheim I can sure you it’s sanitizingly hideous)

    james [www.futuregringo.com]

  20. Curiosity says:

    I am sure you realize that there is little difference between governments and businesses at times – you may want to look at the Roman’s objections to corporations.

  21. just_paranoid says:

    @jeffjohnvol: i’m not trying to argue over the laws of this; just saying i don’t think you’ll have a problem with the people of your porch and that your example was a extreme.

  22. jeffjohnvol says:

    @just_paranoid: I was just employing the Limbaugh principal of pointing out the obsurd by being obsurd.

  23. Daniel-Bham says:

    Bad decision. Private property should trump all other concerns here. What is to prevent PETA from having adults roaming around nude protesting fur, or NAMBLA walking around with boy-sex pamphlets, or Nazis marching with their regalia and hate material, or bestiality advocates, or any other group for that matter?

    Things like that might actually drive *down* business and the mall shouldn’t be forced to give up private property rights just because they invite people to shop. People shop at the convenience of the mall, and the mall should be able to ban anyone for any reason whatsoever as you have no “right” only a “privilege” to shop there.

  24. GothamGal says:

    Now I have something to do for the rest of the day.

  25. Sudonum says:

    @Daniel-Bham:
    From the article:
    Justice Moreno said shopping malls were entitled to enact and enforce “reasonable regulations of the time, place and manner of such free expression,” to avoid a disruption of business.

    “But they may not prohibit certain types of speech based upon its content,” he wrote, like speech urging a boycott of stores.

  26. trollkiller says:

    See folks this is what happens when you allow medical marijuana.

    I only got to page 10 of the ruling but the cases they are citing to back up their ruling are not even close to what happened here.

    If I am reading this right, you have newspaper employees attacking a store that advertised in the paper. That store has NOTHING to do with the labor dispute between the paper and the employees. How in the hell does involving a store that is not involved with the dispute equal protection of union employees to redress griefs?

  27. Sonnymooks says:

    Not that it matters, but folks do realize this court gets overturned all the time right?

    This decision will almost certainly get tossed.

  28. jeffjohnvol says:

    @Sudonum: LOL, but are they talking about California’s version of free speech, or what would be considered normal free speech?

  29. jeffjohnvol says:

    @Sonnymooks: This is the California Supreme court, and as “Curiosity” pointed out, they deal with this kind of state law, and wouldn’t be trumped by federal intervention, that is, if I understood him/her correclty.

  30. mconfoy says:

    @Daniel-Bham: Talking about property rights is a canard and totally irrelevant. If it’s my private property to do with as I see fit like a private country club, does that mean I can refuse entry to blacks, Jews, and people with hyphens in their names? Not according to the laws of the United States and the Supreme Court’s interpretation of the US Constitution.

  31. mconfoy says:

    @jeffjohnvol: you are correct. just as in Mass. their Supreme Court said it they can not discriminate against same sex couples with state marriage laws. Many states have strong privacy rights that are in their constitution that are not in the US Constitution for example.

  32. Curiosity says:

    @Daniel-Bham:
    Are you saying that your rights should be controlled by whomever owns the land b/c if you are on their land they can control all of your actions or else tell you to get off of it?

    You have an interesting concept of rights – perhaps you should look at the logic of the ACLU defense of the Nazis. [www.kansaspress.ku.edu] Otherwise I think you miss the point to equal protection under the law or living in a civilized society.

  33. TechnoDestructo says:

    @Abusiveelusive: What happened is that most public fora on public land have disappeared.

  34. jeffjohnvol says:

    @mconfoy: Actually, I believe you can. Its morally irrehensible (sp?), but it happens. Remember when Tiger Woods refused to play at a club in Georgia that didn’t allow blacks?

  35. jeffjohnvol says:

    @mconfoy: As I understand it, I don’t think private clubs can discriminate in their hiring practices, but can limit membership by whatever criteria they like. Public businesses would be a different matter, although I think a business can refuse business to whomever they like.

  36. KJones says:

    @Daniel-Bham:

    Bad decision? Really?

    Okay, the next time a car dealership knowingly sells you a lemon and refuses to take it back or fix it, don’t protest publicly that the dealer ripped you off. Or if a restaurant gives your kid e-coli and it kills your kid, don’t warn other customers that the food killed him.

    One might be able to feebly argue that protesting against the use of child labour outside of a Walmart or Nike store is trespassing or harassment. But to say that valid criticism against a company, which broke the law and behaved unethically, is wrong is lunacy. We shame Johns who pay for prostitution, so why not shame companies that fail to provide or service their products?

  37. arcticJKL says:

    @NEQUAM:
    The thing is that the segregationists were correct in insisting that they should be able to do what they want in their own stores. The fact that their were racist jerks doesn’t mean they were wrong.

    I think that the problem for malls is that they try to create a ‘public’ space by having a central walk way with benches and such and encourage the public to treat them like the old downtowns.

    If you had a COSTCOesque type mall with membership requirments protesters could be excluded.

  38. jeffjohnvol says:

    @KJones: People have protested these types of people, but they were on the public street near the entrance, which is compleletely legit. The inside of a mall is owned by a private business. That is the topic of discussion.

  39. Sonnymooks says:

    @jeffjohnvol:

    SCOTUS overturns state laws routinely.

    The california SC has been overturned numerous times (along side their federal appellate brethren).

    I almost can guarantee this will be overturned (I am not saying it thats good or bad, or even if this decision is good or bad), but decisions like this, when they come from california, get tossed almost as though it was instinct.

  40. Curiosity says:

    Again that is if the Supreme Court has jurisdiction.
    See [www.supremecourtus.gov]

    Moreover I think that you fail to see the importance of state government and how it interacts with the federal government. [papers.ssrn.com] Most people wrongly overlook the impact that state governments have on their lives and suffer because of it (or benefit see Florida = No state income tax).

  41. jamesdenver says:

    @arcticJKL:

    Exactly. Especially when cities GIVE public spaces to private companies to encourage that type of development.

  42. goodkitty says:

    @Daniel-Bham: Your examples are things that would be illegal however (public nudity, propositioning sex, etc.). This isn’t black and white, unfortunately (pun mildly intended based on comments above)… in this case, IMO, the rights of common people to voice their opinion is more important to the public well-being than a shop which already operates as a semi-public forum being guaranteed to operate without disruption.

    As a business under protest, the property owners can take steps to rectify the situation, such as no longer carrying clothes made by sweatshops or not using e-coli-tainted meat. As a consumer, if you could not protest, what would be the most effective way to rectify a businesses’ wrongdoing? Aside from places like this site, you could only perhaps spread the word to others (and open yourself up for a libel/slander suit from said company) or take the business to court, which will not be an option for those without the monetary resources required. Without the ability to protest or the funds for a lawyer, the common person may have NO recourse for harm or damages aside from just “taking it” from the business.

    Free speech is the only prudent way, and allowing its expression is a necessary (sometimes) evil to protect everyone.

  43. dantsea says:

    If nothing else, reading comments on various sites where news of this decision has traveled have been entertaining for the near-apopletic reactions it’s triggered in certain people.

    The California Supreme Court may have been overturned numerous times, but I’m betting that the federal Supreme Court will, if presented with this case, refuse to hear it without further comment.

  44. trollkiller says:

    @KJones: You can protest all you want on PUBLIC property or even public easements. Whould you think it is ok for me to stand on your front porch and protest you? Maybe I think the cooking in your house smells to high heaven, so that means I can stand on your front porch and yell “you stink”.

  45. trollkiller says:

    @curiosity: Yes, my land so I control what happens on it. You have NO rights on MY property. Of course I can’t break the law when I deny you your rights. Example: I can’t kill you because of what you say, but I can make you leave.

  46. Shadowfire says:

    @DanB: I’m thinking the other way… there’s no guarantee of free speech on private property, and there never has been. And, if the mall is suddenly private property, why should the mall owner pay taxes on the property? Why shouldn’t the value of the property be refunded, since said mall is apparently state-owned?

    This is a rather nasty decision, and I hope it continues to be fought.

  47. ivealwaysgotmail10 says:

    This is pretty funny, Just the other day i was in a Sony Store, in a private mall, I Explained to the store manager my situation, that Sony Refused to repair my console because it was “too dusty”. He was generally rud altogether, i was very civil in his store. People that were purchasing I casually informed people purchasing PS3’s that they better not let it get dusty because they wont replace it then. This is all i said, nothing further, The store’s assistant manager Came up to me yelling, telling me that he was going to call the cops for trespassing, when i was actually going to purchase something. I told him fine i would Sit outside the store letting people know my situation and asking them not to go inside, or purchase anything.

    He told me he would immediately call mall security and i would be escorted away from the shopping center. I actually made the point that apparently free speech didn’t exist in a place just as public as the sidewalk. I walked by a few security guards and stopped them to ask them what my rights were in the situation, They told me exactly what he did, that unfortunately they would have to escort me off the property if i did that.

    Im hoping this is passed in Illinois So i can go back to that same store eventually just to make my point.

    I 100% agree with this, And i am glad this law was passed.

  48. ivealwaysgotmail10 says:

    Wow, sorry for the mass typos ;-(

  49. yahonza says:

    Both the majority and the dissent weigh free speech against property rights.

    However, I think the case ought to turn on the Mall’s first amendment rights. The mall has the first amendment right not to endorse or support speech it does not agree with.

    Providing a place for people to park, walk, stand, shop and even breath fresh air costs money. A law forcing someone to pay for someone else’s speech is arguably a first amendment violation, and I would like to see the US Supreme court consider that issue.

  50. Unnamed Source says:

    @yahonza: Maybe it’s just me, but I’d think it would be pretty clear that a mall wasn’t endorsing or supporting the speech in question by the presence of picketers.

  51. dantsea says:

    @Shadowfire: Actually, it’s been part and parcel of California law since the 1970s, surviving numerous challenges in a variety of federal and local court venues. The only thing that’s really happened here is the State Supremes clarifying that mall owners can’t restrict the content of that speech.

    While I can understand the vehement emotional reaction this brings out in people, the matter has long since been settled.

  52. Curiosity says:

    @trollkiller:

    Ah, so basically you object to not only the Declaration of Independence (Unalieneable rights), but have little concept of property law where in order for you to preserve your personal rights and have uniformity under the law you must give on your property rights.

    Morever by implication that you have all the rights upon your land and no one else has any rights, you are endorsing something that amounts to slavery since others are inferior to you [pat.tamu.edu]
    While proper in some instances to treat people as tresspassers and uninvited, it seems ill mannered and unethical to invite people over then treat them badly, especally since you are technically a host.

    I assume this is not what you meant, but rather are dealing with something other than the case in point where you deal with most people as trespassers.

  53. Curiosity says:

    @dantc: Actually they have already clarified that it is a State matter and that States can create a State constitutional right of access to shopping centers, therefore this issue (of state application of State law which SCOTUS has said was not a Federal issue of preeemption) is not really in the jurisdiction of SCOTUS.

    I believe what you are missing is the possible compelled use of private property for speech purposes which may be a violation of the shopping center’s 1st amendment (FED.) rights – however this has already been decided under Pruneyard by SCOTUS (see above).

  54. trollkiller says:

    @Curiosity: Relink I got a 404 error.

    My house, my castle. If you notice I said I could not break the law enforcing my property rights, that in turn protects your rights under the Constitution. You can do all of your God given rights once you are off my property.

    I am not holding you on my property. If you don’t like my rules you are free if not encouraged to leave.

    Inviting someone onto your property and treating them badly is not right. Telling them they have to stop a behavior you disapprove of, or they must leave is perfectly ok.

  55. Curiosity says:
  56. trollkiller says:

    @curiosity: I meant this one. [pat.tamu.edu] somehow a period was on the end of it and I got a 404

    Anyhow I am not disputing that the left coast have different ideas as to what is mine. If the California constitution allows this kind of property rights abuse then the court ruled correctly. Still does not make it right.

    p.s. reading the slavery thing now.

  57. dantsea says:

    @Curiosity: Thanks for the pointers, much appreciated.

  58. S-the-K says:

    This is more evidence that California should secede from the Union, have the “Big One” earthquake, and fall into the Pacific Ocean. The average American IQ would surely jump by 10 points.

    This is PRIVATE PROPERTY! What about the First Amendment rights of the PROPERTY OWNER? If people want to protest a store at the mall, they can do it on PUBLIC PROPERTY (i.e., the sidewalk).

    Does this mean that if I want to protest against Carlos R. Moreno, I can walk onto his front porch or into his living room and walk a picket line?

    Clearly the judges are on something, or maybe they went off their medication.

    I need to read the original article to learn what store the union goons were protesting so I can be sure to go buy something.