Right to Engage in Expressive Activity on Private
02/14/2009
Many commercial property owners will be surprised to learn that California law permits speech activity on certain commercial property. In the case of Robins v. Pruneyard Shopping Center , the California Supreme Court stated that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers, even when the centers are privately owned." The Court gave commercial property owners the right to establish regulations regarding reasonable "time, place and manner" restrictions on expressive activity, and left the door open for owners of "modest retail establishments" to prohibit all expressive activity on their premises.
Commercial property owners, along with the courts and those interested in engaging in such free speech activity, have struggled in the past few years to determine, first, precisely what constitutes a reasonable "time, place and manner" restriction on expressive activity, and second, how "modest" must a retail establishment be in order to prohibit all expressive activities.
An example of acceptable time, place, and manner restrictions can be seen in a recentYolo County decision, where a trial judge ruled that requiring a 30-day advance application, restricting each group to two days per store per year, and restricting solicitation on very busy shopping days, all passed constitutional muster. In contrast, restrictions on the content of speech generally have not been upheld by courts.
The issue of what constitutes a "modest retail establishment" is more perplexing. The First District Court of Appeal recently affirmed a trial court's order banning a commercial signature-gathering company from soliciting signatures at a Trader Joe's store inSanta Rosa . The trial court specifically stated that the Trader Joe's store was a "modest retail establishment" as opposed to a "large interior supermarket type grocery store." The Court of Appeal interpreted Pruneyard as holding that each case must balance the interests of the private property owner in maintaining exclusive control of the property against the interests of the public in using the property as a forum for speech activities. The Court also stressed that Pruneyard focused on evidence that shopping centers were "supplanting central business districts as a preferred public forum, i.e., the place where people chose to come and meet and talk and spend time."
If the Trader Joe's "balancing test" is relied upon by lower courts in California in the future, it appears that future cases will be decided on an individual basis, taking the following factors into account:
(1) Purpose of the Invitation to the Public. The fact that the Trader Joe's store invites people to "shop for food and food related items" and not to "meet friends, to eat, to rest or to be entertained" contributed heavily to the finding that the public's interest in using the store as a forum for free speech is not as strong as its interest in such activities at a large shopping center like Pruneyard. The trial judge in Yolo county also relied on this issue, stating that the supermarket at issue is not a place of congregation nor a substitute town square or municipality. People do not elect to go there in their spare time and simply hang out."
(2) Size. The Trader Joe's court makes it clear that size, while one factor to be considered, is not a determining factor in every case. Indeed, while the Trader Joe's store in question is a relatively modest 11,000 square foot stand-alone structure, theYolo County store, which the judge ruled does not meet the definition of a "quasi-public forum," is a much larger 58,000 square foot structure.
(3) Other Individual Factors. Other relevant factors include: (a) whether the building is a single structure or whether there are several businesses within one structure or in close proximity, sharing parking areas; (b) whether there is a plaza or central courtyard for congregating; (c) whether there are adjoining business which could be considered "entertainment," such as a movie theater or arcade; and (d) whether there is evidence that the business in question has supplanted a central business district as a preferred public forum.
In conclusion, property owners who haven't already done so should immediately implement time, place and manner restrictions regarding requests to use their property for "speech" activities. Guidelines similar to those suggested by the Yolo County Superior Court should pass constitutional muster. While no one can predict the next turn of the wheel in this area of free speech law, clear and concise written regulations adapting these guidelines will help avoid uncertainties regarding what activities are permitted on the owner's property and what activities are not.
Commercial property owners, along with the courts and those interested in engaging in such free speech activity, have struggled in the past few years to determine, first, precisely what constitutes a reasonable "time, place and manner" restriction on expressive activity, and second, how "modest" must a retail establishment be in order to prohibit all expressive activities.
An example of acceptable time, place, and manner restrictions can be seen in a recent
The issue of what constitutes a "modest retail establishment" is more perplexing. The First District Court of Appeal recently affirmed a trial court's order banning a commercial signature-gathering company from soliciting signatures at a Trader Joe's store in
If the Trader Joe's "balancing test" is relied upon by lower courts in California in the future, it appears that future cases will be decided on an individual basis, taking the following factors into account:
(1) Purpose of the Invitation to the Public. The fact that the Trader Joe's store invites people to "shop for food and food related items" and not to "meet friends, to eat, to rest or to be entertained" contributed heavily to the finding that the public's interest in using the store as a forum for free speech is not as strong as its interest in such activities at a large shopping center like Pruneyard. The trial judge in Yolo county also relied on this issue, stating that the supermarket at issue is not a place of congregation nor a substitute town square or municipality. People do not elect to go there in their spare time and simply hang out."
(2) Size. The Trader Joe's court makes it clear that size, while one factor to be considered, is not a determining factor in every case. Indeed, while the Trader Joe's store in question is a relatively modest 11,000 square foot stand-alone structure, the
(3) Other Individual Factors. Other relevant factors include: (a) whether the building is a single structure or whether there are several businesses within one structure or in close proximity, sharing parking areas; (b) whether there is a plaza or central courtyard for congregating; (c) whether there are adjoining business which could be considered "entertainment," such as a movie theater or arcade; and (d) whether there is evidence that the business in question has supplanted a central business district as a preferred public forum.
In conclusion, property owners who haven't already done so should immediately implement time, place and manner restrictions regarding requests to use their property for "speech" activities. Guidelines similar to those suggested by the Yolo County Superior Court should pass constitutional muster. While no one can predict the next turn of the wheel in this area of free speech law, clear and concise written regulations adapting these guidelines will help avoid uncertainties regarding what activities are permitted on the owner's property and what activities are not.
Source:Donahue Gallagher Woods LLP
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