In a recent court filing that does not bode well for the initiative process and "expressive rights" in California, Target Stores is picking on an individual signature gatherer to obtain a court order against any such activity at Target Stores.

   In a Complaint filed in Los Angeles County Superior Court in late August, and just recently served, Target Stores, represented by Morrison and Foerster (New York Mayor Bloomberg proclaimed yesterday "Morrison and Foerster" day in New York City), is suing an individual initiative signature gatherer and 100 Does for a permanent injunction and trespass to enforce Target’s blanket policy of "prohibiting all groups and individuals from using its property for expressive activity." 

   The lawsuit would bar all expressive activities, including signature gathering for initiative campaigns, in front of Target stores, to avoid "potential for congestion in front of entrances to Target stores" and the "potential for interference with business operations."  Almost all the allegations in the Complaint are general in nature and no specific allegations or facts supporting actual "congestion" or "interference with business operations" are alleged.  The only specific allegation in the Complaint alleges that Target Stores called "certain law enforcement officials" asking them to remove defendant Sharon Hart from engaging in signature collection in front of Target Stores in Orange and Los Angeles Counties to enforce the company policy, but the enforcement officials "have refused to do so without a determination of this Court that Target may lawfully compel compliance with its policy or without Target employees conducting citizen’s arrests."  In other words, Target choose not to enforce its own policy through citizen’s arrests.  They wanted the police to do that, and the police said "no."

   The lawsuit of course calls into question a right under the California constitution to engage in expressive activity on private property in privately owned shopping centers, which was recognized by our Supreme Court in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [153 Cal.Rptr. 854, 592 P.2d 341] (Pruneyard).  There is a tension in this right between the primacy of free speech and property rights, and the court cases seek to find a balance between the two.  I think it important to try to explain this tension, so that readers can understand it better, here goes:

   In Pruneyard the California Supreme Court found that California affords greater free speech protection than even the First Amendment of the United States Constitution, and the Pruneyard court held that "… sections 2 and 3 of article I of the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." (Id. at p. 910.)  Article I, section 2, states in part: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.  A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2, subd. (a).) Article I, section 3, states: "The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good." (Cal. Const., art. I, § 3.).  In reaching its decision, the Pruneyard court was careful to not " ‘minimize the importance of the constitutional guarantees attaching to private ownership of property.’ " (Pruneyard, supra, 23 Cal.3d at p. 906.)  The court noted, though, that the property owner’s interests were not materially injured by the challenged activity in light of the fact that the owner had " ‘ "fully opened his property to the public." ‘ " (Id. at p. 910.)  Further, the court recognized that " ‘[a]ll private property is held subject to the power of the government to regulate its use for the public welfare.’ [Citations.]" (Id. at p. 906.)  The court reasoned that "[t]o protect free speech and petitioning is a goal that surely matches the protecting of health and safety, the environment, aesthetics, property values and other societal goals that have been held to justify reasonable restrictions on private property rights." (Id. at p. 908.)  The court also recognized that the government’s power to regulate property when the interests of the individual owner come in conflict with the interests of society is not static; property rights can and should be redefined to accommodate the conditions of modern life. (Id. at pp. 906-907.)  The specific "condition of modern life" that grabbed the Pruneyard court’s attention was the evolution of the suburban shopping mall and its particular suitability as a forum for expressive activity.
Later cases have chipped away at Pruneyard, but the case still stands.  In Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 15621572, shopping centers were allowed to establish certain requirements as long as they made their property available for petitioning.  "[I]n giving private property owners the right to establish ‘time, place and manner’ rules, the court used the same formulation it had employed in describing the power government possesses with respect to public forums and the conduct of activities protected by the First Amendment." Thus although a citizen’s "right to engage in expressive activity at shopping centers is found solely in the broader protection provided by California’s Constitution, a shopping center’s power to impose time, place, and manner restrictions on such activity is nonetheless measured by federal constitutional standards." (Ibid.)  The Court noted that "’even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." [Citations.]’" (Id. at p. 1573.)  Another case, Trader Joe’s (citation not provided) carved out some exceptions from Pruneyard for small retail establishments.  In Lushbaugh v. Home Depot U.S.A., Inc (2001), 93 Cal.App.4th 1159 , 113 Cal.Rptr.2d700, the court did not need to decide whether a large store like Home Depot alone was a “shopping center” subject to the Pruneyard rule or a “modest retail establishment” as stated in Trader Joe’s.  However, in Lushbaugh, the court recognized that written guidelines are an established company policy of Home Depot and state that "[e]ach Home Depot store should have at least one designated area for use by individuals desiring to engage in Non-Commercial Speech Activity"; that "[t]o further Home Depot’s goal of assuring that no person or property is injured in the course of Non-Commercial Speech Activity, no Activity shall be permitted anywhere other than in a Designated Area"; that the Designated Area "should be located outside of the store, with the area between the Designated Area and the nearest public exit unobstructed"; that if a store has more than one public exit, "a Designated Area should be located near each public exit"; and that "the location of a Designated Area may be subject to change, depending upon the individual store’s conditions, permits and restrictions."

   Target’s position appears to be that regardless of its status as a large retail establishment, it should be entitled to a policy that completely eliminates expressive activity on its properties, and though this position might be consistent with a trend away from protection of expressive rights in Pruneyard, its position would also appear to go too far given the strong emphasis in support of expressive rights in the California Constitution, and the importance of the initiative process to our democratic institutions.  A "balancing" should be able to be found at a large retail establishment that protects everyone’s rights.  What do you think?

This entry was posted on Wednesday, October 24th, 2007 at 12:00 am and is filed under Blog Posts.