Today’s massive shopping centers, where consumers can find everything from wedding gowns and jewelry to electronics, furniture, fast food and much more, have largely replaced the Main Street shops in many communities. But have they also evolved to become their communities’ public squares, where political and social issues are freely debated?
That was the question presented to the California Court of Appeal by a recent case (Salazar v Majestic Realty).
Alex Salazar wanted to distribute leaflets at the Citrus Grove and Mountain Grove shopping centers in Redlands, to promote his belief that men have a legal right to decide whether to pay child support for a child born outside of marriage.
Owners of the two shopping centers, which are adjacent to one another, had a policy prohibiting “soliciting, petitions, polling…[and] distribution of pamphlets” on their property. Signs at each entrance disclosed this policy, adding that it would be enforced by local police and “prosecuted to the fullest extent of the law.”
The centers also had a code of conduct which stated, in part, “All non-commercial expressive activity must be in compliance with the Center’s rules,” which included obtaining prior written permission from management.
Salazar asked for permission to distribute his flyers at the centers. His request was denied, by management, who cited the policy against political activity and distribution of leaflets.
He sued the centers, alleging their policy prohibiting “expressive activity” violated the California Constitutions’ provisions protecting liberty of speech.
He asked the court to declare that the ban on expressive activity at the centers was unconstitutional. He also requested a preliminary injunction that would bar the centers from enforcing the ban, as well as damages.
Salazar argued that the shopping centers were public forums. Citing a 1979 ruling by the California Supreme Court, Robins v Pruneyard Shopping Center, he argued that shopping centers are effectively public forums, and that any inconvenience to the centers caused by allowing the open expression of ideas was outweighed by the harm he would suffer from the loss of his free speech rights.
The company managing the centers argued that the physical layout of their facilities justified a limitation on the activities Salazar proposed.
They pointed out that the Pruneyard mall that was the subject of the high court’s ruling had a central courtyard and common areas with seating and amenities, all designed to “encourage patron to linger and congregate.” In effect these areas were the equivalent of a public square.
By contrast, they said, the Redlands centers did not have areas designed for members of the public to gather and socialize.
They pointed out that Salazar had said he wanted to distribute his leaflets within five to ten feet of the entrances to a Target store, a movie theater and a gym. Areas close to the entrances and exits of a store are not public gathering places, the defendants argued. Leafletting in these locations would interfere with normal business operations.
The trial court denied Salazar’s request for a preliminary injunction, citing the difference between the common areas in the Pruneyard case and the congested entrance locations where Salazar wanted to distribute his leaflets.
Salazar appealed the trial court’s ruling, and won. The appellate justices ordered the lower court to reverse its decision.
Salazar had the right to challenge the constitutionality of the centers’ restrictions on what he could express, the justices said.
The requirement that a person had to obtain permission from management before engaging in expressive activity, without objective criteria to guide decisions on such requests, was unconstitutional, they said. The centers could impose reasonable restrictions on the time, place, and manner of expressive activity, but they could not ban it entirely.
The justices ordered the lower court to reverse its decision denying Salazar’s request for a preliminary injunction, and awarded him his costs on appeal.
By Robert C. Weiss