Restricting Expressive Activities in CA Shopping Centers

The California Constitution requires an owner of a shopping center to respect free speech in the public forum areas of the shopping center. This means that expressive activities can be prohibited in the non-public forum areas. However, if shopping center rules attempt to limit expressive activities in the public forum areas, then the rules must meet certain standards to be upheld.

California courts have determined that public forum areas of a shopping center are designed and furnished to “permit and encourage the public to congregate and socialize at leisure.” Examples include common areas, courtyards, plazas or other areas with seating or amenities that encourage visitors to stop shopping in order to converse and socialize with others, relax and/or be entertained. Although privately owned, these areas are categorized as public forums because they are open to the public like traditional public forums, such as public streets, sidewalks and parks.

By contrast, California courts have determined that the non-public forum areas of a shopping center serve specific functions of helping patrons enter and exit stores and view merchandise and advertising displays. These areas typically lack seating and are not intended for lingering or socializing. For example, the sidewalk in front of a store entrance or the areas immediately adjacent to the entrance are not public forum areas and therefore are not subject to the California Constitution's liberty of speech provision.

CA Constitution: Content-Based v. Content-Neutral Restrictions

The California Constitution's protection of free speech in public forum areas is not absolute and allows the imposition of certain restrictions. Different kinds of restrictions are subject to different standards (i.e., whether a particular restriction is content-based or content-neutral).

A content-based restriction attempts to control the topic or underlying message of the speech or activity. Shopping center owners can impose content-based restrictions only if they are narrowly tailored to serve a compelling interest. The following are some helpful tests to determine whether a particular restriction is based on content: 1) the rule necessitates that speech be examined in order to determine its acceptability; 2) the rule distinguishes favored speech from disfavored speech; or 3) the rule exhibits favoritism or hostility toward certain topics. California courts provide no guidance as to what constitutes a compelling interest and rarely, if ever, find that a compelling interest exists. Therefore, owners should refrain from enacting any content-based restriction.

The following are examples of content-based rules that California courts would likely find unconstitutional:

• A rule that prohibits individuals from distributing leaflets outside a store urging customers not to purchase its merchandise will not be upheld. This is a content-based restriction because it is based on disapproval of the message on the leaflets. Additionally, the shopping center's interest in maximizing profits is not compelling when compared to individuals' right to free expression.
• A rule that prohibits individuals from conversing about their religious views with shopping center patrons will not be upheld. This is a content-based restriction because it is aimed at speech on a particular topic, namely religion. Further, the shopping center's interest in providing a stress-free environment to its patrons is not compelling when compared to the free speech rights of others at the shopping center.

Alternatively, shopping center owners can impose content-neutral restrictions as long as they are narrowly tailored to serve a significant interest and leave open other obvious and easy avenues of communication. In this context, narrowly tailored does not mean the least restrictive or intrusive means; it just means a close fit between the means and end, which is evidenced by the existence of other obvious and less-burdensome alternatives. A content-neutral restriction includes no reference at all to the content of the regulated speech and instead focuses on the time, place and manner of speech. Content-neutral restrictions confer benefits and impose burdens on speech without reference to the underlying message, view or topic. To prove the existence of a significant interest, speculation as to what might happen if the proposed activity is allowed is insufficient; such proof instead must be based on studies, anecdotal evidence or history of activity at the shopping center. California courts have decided several cases where a significant interest was proven.

The following are examples of content-neutral restrictions that California courts would likely rule acceptable:

• A rule that prohibits leafleting unoccupied cars in the shopping center's parking lot will likely be upheld. The restriction is content-neutral because it is unrelated to the message of any particular leaflet. It advances the significant interest of controlling litter and traffic and promoting safety in the entry and exit of the parking lot. Finally, the restriction leaves open alternative avenues of communication because it does not prevent leafleting on the shopping center's sidewalk.
• A rule banning the carrying or wearing of signs in the shopping center will not be upheld. Even though this is a content-neutral restriction that serves a significant interest of protecting patrons from injuries caused by signs or the sticks they are attached to, the ban is not narrowly tailored and does not leave open other avenues of communication. Alternatively, a ban on signs that are used in dangerous or intrusive ways, rather than an outright ban on all images and text, is more likely to be upheld.
• A rule that prohibits expressive activities during peak traffic days will not be upheld. Even though this is a content-neutral restriction, it is too broad. If the rule was more narrowly tailored by limiting the number of individuals engaged in expressive activities at any one time, then it would be more likely to be upheld. Additionally, the rule fails to leave open less burdensome avenues of communication because limiting expressive activity to non-peak times eliminates the opportunity to effectively reach a large percentage of the shopping center's target audience.
• A rule that restricts expressive activities during the busiest 30 days of the year will likely be upheld. If the owner shows
  evidence of a history of customer complaints, physical and verbal abuse of store employees, and escalating altercations, then this will prove a significant interest in the smooth operation of the mall during the days with potential for more conflicts. And it is narrowly tailored because the prohibition is for 30 days, which is less than 10% of the year.

CA Constitution: Additional Considerations

It is important to note that regardless of the type of forum or restriction, certain expressive activities may be prohibited altogether. The California Constitution's liberty of speech provision does not protect false or misleading commercial speech, extortion or threats of bodily injury. In addition, an owner should always ensure that the rules do not run afoul of the “void for vagueness” doctrine. This doctrine addresses the due process requirement of adequate notice. In the context of a shopping center, owners should ensure that their rules are clear and concise and illustrate how visitors can comply.

CA Labor Statutes

While the California Constitution protects expressive activities in the public forum areas of a privately owned shopping center, California labor statutes provide even broader protections for labor-related speech in nearly all areas of a shopping center. It is believed that content-based preference for labor speech is justified by the government's objective of promoting the collective bargaining process in order to resolve labor disputes. Consequently, prohibiting labor speech on shopping center premises, even in the non-public forum areas, is very challenging.

One California labor statute aims to promote worker rights in the collective bargaining process and reduce judicial interference in labor disputes by protecting certain labor-dispute activities from enjoinment. The protected activities include communicating the facts of a labor dispute and peaceful picketing or patrolling involving any labor dispute. The statute does not, however, protect unlawful conduct, including breach of the peace, disorderly conduct and unlawful blocking of entrances and exits.

Another California labor statute prohibits injunctions during a labor dispute unless the complainant overcomes various procedural hurdles. For the complainant to obtain relief, the court must find that: 1) unlawful acts have been threatened or will be committed unless restrained; 2) substantial and irreparable injury to the complainant's property will result; 3) greater injury will be inflicted upon the complainant by the denial of relief than will be inflicted upon defendants by granting the relief; 4) the complainant has no adequate remedy at law; and 5) the public officers are unable or unwilling to furnish adequate protection of the complainant's property.

These statutes protect peaceful picketing anywhere in the shopping center, even, for example, on a privately owned walkway in front of a store entrance. While free speech constitutional protection does not apply to privately owned sidewalks in front of customer entrances to stores because they are not considered public forum areas, California statutes step in to protect labor speech in such areas, meaning that picketing would be lawful.

The left side of the chart'below indicates how to evaluate whether a shopping center's restriction of non-labor expressive activities will be upheld. The right side of the chart indicates how to evaluate restrictions of labor-related speech.

Conclusion

In sum, owners of California strip malls and shopping centers lacking public forum areas will likely be permitted to limit expressive activities on their premises, unless the expressive activity relates to union protests. However, in the public forum areas, California courts view blanket restrictions on expressive activities with disfavor. Owners of California shopping centers should invest the time and effort necessary to draft specific and concise shopping center rules based on real (not theoretical) problems. And until the California courts uphold more examples of compelling interests, owners should focus on rules that are unequivocally content-neutral.

Finally, nearly 40 other states have free speech clauses in their constitutions that are very similar to the California Constitution's free speech clause. Interestingly, nearly one-third of those states have rejected California's extension of free speech rights to private shopping centers. While some states may still feel discomfort in categorizing any part of private property as a public forum, most states have traditionally looked to California for its lead on the interpretation of free speech issues. For now, however, California may have one of the most expansive applications of its constitutional free speech clause.

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Mindy Wolin Sherman is a Partner in the Chicago office of Perkins Coie LLP. She can be reached at 312-324-8614 or [email protected]. Sharona Toobian is an Associate in the firm's Los Angeles office. She can be reached at 310-788-3241 or [email protected].

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In December 2012, the California Supreme Court decided a case that attempted to clarify the protective reach and interaction of the California Constitution and California labor statutes on expressive activities on privately owned California shopping centers. This article provides owners and their counsel with suggested guidelines for the restriction of expressive activities, and illustrates the types of shopping center rules that will more likely be upheld by California courts. While this article specifically addresses the interpretation of California statutes and the California Constitution, it should be noted that many jurisdictions look to California interpretations as a starting point on freedom of speech issues.

A key inquiry is whether the expressive activity is labor-related speech, which is provided greater protection than other expressive activities. California statutes protect labor-related speech in nearly all areas of a privately owned shopping center. Other expressive activities in public forum areas of the shopping center (except for certain prohibited speech, including misleading commercial speech, extortion and threats of serious bodily harm) are protected by the California Constitution's liberty of speech provision. Regardless of the type of expressive activity, labor-related or otherwise, owners should heed certain considerations in drafting and enforcing shopping center rules.

CA Constitution: Public Forum v. Non-Public Forum

The California Constitution requires an owner of a shopping center to respect free speech in the public forum areas of the shopping center. This means that expressive activities can be prohibited in the non-public forum areas. However, if shopping center rules attempt to limit expressive activities in the public forum areas, then the rules must meet certain standards to be upheld.

California courts have determined that public forum areas of a shopping center are designed and furnished to “permit and encourage the public to congregate and socialize at leisure.” Examples include common areas, courtyards, plazas or other areas with seating or amenities that encourage visitors to stop shopping in order to converse and socialize with others, relax and/or be entertained. Although privately owned, these areas are categorized as public forums because they are open to the public like traditional public forums, such as public streets, sidewalks and parks.

By contrast, California courts have determined that the non-public forum areas of a shopping center serve specific functions of helping patrons enter and exit stores and view merchandise and advertising displays. These areas typically lack seating and are not intended for lingering or socializing. For example, the sidewalk in front of a store entrance or the areas immediately adjacent to the entrance are not public forum areas and therefore are not subject to the California Constitution's liberty of speech provision.

CA Constitution: Content-Based v. Content-Neutral Restrictions

The California Constitution's protection of free speech in public forum areas is not absolute and allows the imposition of certain restrictions. Different kinds of restrictions are subject to different standards (i.e., whether a particular restriction is content-based or content-neutral).

A content-based restriction attempts to control the topic or underlying message of the speech or activity. Shopping center owners can impose content-based restrictions only if they are narrowly tailored to serve a compelling interest. The following are some helpful tests to determine whether a particular restriction is based on content: 1) the rule necessitates that speech be examined in order to determine its acceptability; 2) the rule distinguishes favored speech from disfavored speech; or 3) the rule exhibits favoritism or hostility toward certain topics. California courts provide no guidance as to what constitutes a compelling interest and rarely, if ever, find that a compelling interest exists. Therefore, owners should refrain from enacting any content-based restriction.

The following are examples of content-based rules that California courts would likely find unconstitutional:

• A rule that prohibits individuals from distributing leaflets outside a store urging customers not to purchase its merchandise will not be upheld. This is a content-based restriction because it is based on disapproval of the message on the leaflets. Additionally, the shopping center's interest in maximizing profits is not compelling when compared to individuals' right to free expression.
• A rule that prohibits individuals from conversing about their religious views with shopping center patrons will not be upheld. This is a content-based restriction because it is aimed at speech on a particular topic, namely religion. Further, the shopping center's interest in providing a stress-free environment to its patrons is not compelling when compared to the free speech rights of others at the shopping center.

Alternatively, shopping center owners can impose content-neutral restrictions as long as they are narrowly tailored to serve a significant interest and leave open other obvious and easy avenues of communication. In this context, narrowly tailored does not mean the least restrictive or intrusive means; it just means a close fit between the means and end, which is evidenced by the existence of other obvious and less-burdensome alternatives. A content-neutral restriction includes no reference at all to the content of the regulated speech and instead focuses on the time, place and manner of speech. Content-neutral restrictions confer benefits and impose burdens on speech without reference to the underlying message, view or topic. To prove the existence of a significant interest, speculation as to what might happen if the proposed activity is allowed is insufficient; such proof instead must be based on studies, anecdotal evidence or history of activity at the shopping center. California courts have decided several cases where a significant interest was proven.

The following are examples of content-neutral restrictions that California courts would likely rule acceptable:

• A rule that prohibits leafleting unoccupied cars in the shopping center's parking lot will likely be upheld. The restriction is content-neutral because it is unrelated to the message of any particular leaflet. It advances the significant interest of controlling litter and traffic and promoting safety in the entry and exit of the parking lot. Finally, the restriction leaves open alternative avenues of communication because it does not prevent leafleting on the shopping center's sidewalk.
• A rule banning the carrying or wearing of signs in the shopping center will not be upheld. Even though this is a content-neutral restriction that serves a significant interest of protecting patrons from injuries caused by signs or the sticks they are attached to, the ban is not narrowly tailored and does not leave open other avenues of communication. Alternatively, a ban on signs that are used in dangerous or intrusive ways, rather than an outright ban on all images and text, is more likely to be upheld.
• A rule that prohibits expressive activities during peak traffic days will not be upheld. Even though this is a content-neutral restriction, it is too broad. If the rule was more narrowly tailored by limiting the number of individuals engaged in expressive activities at any one time, then it would be more likely to be upheld. Additionally, the rule fails to leave open less burdensome avenues of communication because limiting expressive activity to non-peak times eliminates the opportunity to effectively reach a large percentage of the shopping center's target audience.
• A rule that restricts expressive activities during the busiest 30 days of the year will likely be upheld. If the owner shows
  evidence of a history of customer complaints, physical and verbal abuse of store employees, and escalating altercations, then this will prove a significant interest in the smooth operation of the mall during the days with potential for more conflicts. And it is narrowly tailored because the prohibition is for 30 days, which is less than 10% of the year.

CA Constitution: Additional Considerations

It is important to note that regardless of the type of forum or restriction, certain expressive activities may be prohibited altogether. The California Constitution's liberty of speech provision does not protect false or misleading commercial speech, extortion or threats of bodily injury. In addition, an owner should always ensure that the rules do not run afoul of the “void for vagueness” doctrine. This doctrine addresses the due process requirement of adequate notice. In the context of a shopping center, owners should ensure that their rules are clear and concise and illustrate how visitors can comply.

CA Labor Statutes

While the California Constitution protects expressive activities in the public forum areas of a privately owned shopping center, California labor statutes provide even broader protections for labor-related speech in nearly all areas of a shopping center. It is believed that content-based preference for labor speech is justified by the government's objective of promoting the collective bargaining process in order to resolve labor disputes. Consequently, prohibiting labor speech on shopping center premises, even in the non-public forum areas, is very challenging.

One California labor statute aims to promote worker rights in the collective bargaining process and reduce judicial interference in labor disputes by protecting certain labor-dispute activities from enjoinment. The protected activities include communicating the facts of a labor dispute and peaceful picketing or patrolling involving any labor dispute. The statute does not, however, protect unlawful conduct, including breach of the peace, disorderly conduct and unlawful blocking of entrances and exits.

Another California labor statute prohibits injunctions during a labor dispute unless the complainant overcomes various procedural hurdles. For the complainant to obtain relief, the court must find that: 1) unlawful acts have been threatened or will be committed unless restrained; 2) substantial and irreparable injury to the complainant's property will result; 3) greater injury will be inflicted upon the complainant by the denial of relief than will be inflicted upon defendants by granting the relief; 4) the complainant has no adequate remedy at law; and 5) the public officers are unable or unwilling to furnish adequate protection of the complainant's property.

These statutes protect peaceful picketing anywhere in the shopping center, even, for example, on a privately owned walkway in front of a store entrance. While free speech constitutional protection does not apply to privately owned sidewalks in front of customer entrances to stores because they are not considered public forum areas, California statutes step in to protect labor speech in such areas, meaning that picketing would be lawful.

The left side of the chart'below indicates how to evaluate whether a shopping center's restriction of non-labor expressive activities will be upheld. The right side of the chart indicates how to evaluate restrictions of labor-related speech.

Conclusion

In sum, owners of California strip malls and shopping centers lacking public forum areas will likely be permitted to limit expressive activities on their premises, unless the expressive activity relates to union protests. However, in the public forum areas, California courts view blanket restrictions on expressive activities with disfavor. Owners of California shopping centers should invest the time and effort necessary to draft specific and concise shopping center rules based on real (not theoretical) problems. And until the California courts uphold more examples of compelling interests, owners should focus on rules that are unequivocally content-neutral.

Finally, nearly 40 other states have free speech clauses in their constitutions that are very similar to the California Constitution's free speech clause. Interestingly, nearly one-third of those states have rejected California's extension of free speech rights to private shopping centers. While some states may still feel discomfort in categorizing any part of private property as a public forum, most states have traditionally looked to California for its lead on the interpretation of free speech issues. For now, however, California may have one of the most expansive applications of its constitutional free speech clause.

[IMGCAP(1)]

Mindy Wolin Sherman is a Partner in the Chicago office of Perkins Coie LLP. She can be reached at 312-324-8614 or [email protected]. Sharona Toobian is an Associate in the firm's Los Angeles office. She can be reached at 310-788-3241 or [email protected].

”