Free speech is a right cherished by every American. For well over two centuries, we have experienced (if not always enjoyed) robust debate in public forums. However, it's not always easy to determine whether a particular forum is public.
A couple of generations ago, it was fair to assume that public forums were publicly owned: street corners, parks, and plazas adjacent to government buildings. Although we have long thought of free speech in the context of the proverbial town square, that concept has evolved over the years. One of its more ubiquitous iterations is the modern shopping mall.
Shopping malls generally resemble public forums in that they are places of free public access where people regularly congregate for a variety of reasons. Most, however, are privately owned. This modern duality between public access and private ownership complicates the already labyrinthine area of free speech law. Shopping malls are not only where the rubber meets the road for fashion aficionados, they are the fulcrum in the balance between the values of private property ownership and free speech.
The High Court Speaks
The U.S. Supreme Court initially applied the First Amendment to private property in 1946 when it held that the business district of a privately owned "company town" could not restrict expressive rights because the town was the functional equivalent of a municipality. The Court concluded that "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." (Marsh v. Alabama, 326 U.S. 501, 506 (1946).) Two decades later, the Court held that a privately owned shopping mall was the "functional equivalent" of the business district described in Marsh. (See Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 318 (1968).)
However, in 1976 the Court took a big step in the opposite direction, expanding property rights at the expense of free speech. In the context of a labor dispute, the justices held that the First Amendment did not guarantee the right to free speech in privately owned shopping centers because the centers were not state actors (Hudgens v. NLRB, 424 U.S. 507, 519 – 521 (1976)). Four years later, the Court reaffirmed the notion that individuals do not have First Amendment rights to freely express themselves in privately owned shopping malls (Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 80 (1980)). However, Pruneyard is also notable for a second holding--that state constitutions may confer upon citizens broader speech rights than the federal Constitution does.
California's Free Speech Clause
The Pruneyard case involved an appeal from the California Supreme Court, which had relied on the state constitution, primarily article I, section 2, to find that the reasonable exercise of speech and of petition rights on privately owned shopping malls are protected activities (Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979)). One important difference between the First Amendment and the free speech clause of California's constitution is that the rights guaranteed under the latter do not depend on those guaranteed by the former. California prides itself on the fact that its constitution has always been "a document of independent force and effect particularly in the area of individual liberties." (Gerawan Farming, Inc. v. Lyons, 24 Cal. 4th 468, 489 – 490 (2000).) The free speech clause and the right to freedom of speech contained in the California Constitution "are not only as broad and as great as the First Amendment's, they are even 'broader' and 'greater.' " (Gerawan, 24 Cal. 4th at 491.)
In Pruneyard, a local shopping center in Campbell prohibited a group of high school students from soliciting opposition to a United Nations resolution against Zionism. The California Supreme Court held that the mall could not prohibit the students' efforts even though their free speech activity was unrelated to the business of the shopping mall. The court compared the public areas of shopping malls to the streets and sidewalks of the central business districts of cities, which have "immemorially been used for purposes of assembly, communicating thoughts between citizens and discussing public questions." (Hague v. CIO, 307 U.S. 496, 515 (1939).) Recognizing the growing importance of the shopping center to American life, the court held that "to prohibit expressive activity in the centers would impinge on constitutional rights beyond speech rights." (Pruneyard, 23 Cal. 3d at 907.)
Although the constitutions of 34 states have free speech provisions virtually identical to California's, few of them have been interpreted as being more expansive than the First Amendment. The high courts of Massachusetts and Washington, for example, have recognized a limited expressive right to solicit signatures for electoral petitions at private shopping centers, but their rulings were grounded in free elections rights, not in free speech rights alone (Batchelder v. Allied Stores Int'l, Inc., 445 N.E.2d 590, 595 (Mass. 1983); Alderwood Assocs. v. Wash. Envtl. Council, 635 P.2d 108, 116 – 117 (Wash. 1981) (plurality opinion)). In Colorado, the state supreme court ruled that a particular shopping mall was effectively a public entity because of the mall's financial and other relationships with the city government (Bock v. Westminster Mall Co., 43 P.2d 55 (Colo. 1991)).
New Jersey is the only state to wholeheartedly follow California's lead. In fact, its supreme court has even gone a few steps further and affirmed the protection of speech outside of the mall context, such as in private universities and hallways in residential buildings. (See State v. Schmid, 423 A.2d 615, 631 – 633 (N.J. 1980); Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium Ass'n, 688 A.2d 156 (N.J. Super. Ct. Ch. Div. 1996), aff'd, 688 A.2d 108 (N.J. Super. Ct. App. Div. 1996).)
That so few states have taken California's approach should not be too surprising. Unlike most public forums, private shopping centers are not owned by the government, paid for by taxpayers, or maintained by government employees. The private owner of a shopping center is responsible for paying property taxes, hiring employees, safeguarding the premises, maintaining the structure, and keeping the common areas clean. Shopping malls generally do not incorporate housing, town halls, libraries, places of worship, hospitals, or schools. There is no "mayor of the mall," and shoppers do not expect to have a say in the everyday affairs of a commercial shopping center. Despite these differences, the California Supreme Court upheld free speech rights at shopping malls in Pruneyard, and reaffirmed its holding nearly 30 years later. (See Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850 (2007).)
The Fashion Valley Mall in San Diego had a rule that prohibited anyone from "interfering" with the business of a mall merchant by "encouraging" customers not to patronize that business. When a group of union members attempted to pass out flyers urging a boycott of a mall department store, the mall's management disbanded the group by claiming trespass, threatening civil litigation and possible arrest. But the California Supreme Court held that requiring shopping malls to allow free speech activity did not "unreasonably impair the value or use of their property as a shopping center." (Fashion Valley Mall, 42 Cal. 4th at 863.) The court balanced private property rights against free speech needs, and the latter, by a slim 4 – 3 majority, prevailed.
The court explained that the application of free speech rights is not solely determined by the distinction between public and private ownership of property. The focus of the court's analysis was on the use of the property in question. And although it concluded that the California Constitution protects the right to free speech in shopping malls--including the right to advocate a boycott--the court emphasized a shopping center's right to impose reasonable regulations upon expressive activity.
In California, litigation involving speech at shopping malls has centered on the boundaries of such regulations. The level of scrutiny a court will apply to a given regulation varies with the context.
If the rule is truly content neutral and governs the "time, place or manner" of the speech activity, the court will utilize an intermediate level of scrutiny to determine whether the rule (1) is narrowly tailored; (2) serves a significant government interest; and (3) leaves open ample alternative avenues of communication (Fashion Valley Mall, 42 Cal. 4th at 865).
On the other hand, if the rule regulates the speech on the basis of content, it will be subject to strict scrutiny--which means that the restriction must be necessary to serve a compelling state interest and narrowly drawn to achieve that end (42 Cal. 4th at 869).
Although the rule in the Fashion Valley Mall case applied to all requests for a consumer boycott, the court did not view it as content neutral. The court noted that such a regulation might be viewpoint neutral because it treats all boycotts the same way; but it is not content neutral because it prohibits speech that urges a boycott while it permits speech that does not. Case law has demonstrated time and again that few content-based regulations on speech--including a shopping mall's rule prohibiting boycott advocacy--can withstand strict scrutiny.
In one case, a suit arose after a security guard at Westfield Mall near Sacramento observed Matthew Snatchko, a youth pastor, chatting about his religion with three women whom he did not know. The women appeared to welcome the conversation. After Snatchko refused the security guard's request that he leave the mall, the guard handcuffed him and local police arrested him for disturbing the peace. Although the charges were dropped, Snatchko sued the security guard and the mall, contending the restrictions violated his First Amendment rights.
At issue was the constitutionality of the mall's rules requiring persons to obtain a permit before engaging in any "non-commercial expressive activity." Westfield said the phrase referred to any activity that had a "political, religious or other non-commercial purpose." (Snatchko v. Westfield, LLC, 187 Cal. App. 4th 469, 478 (2010).)
As such, Westfield's regulation went a giant step further than the one struck down in Fashion Valley Mall. Instead of prohibiting only speech promoting boycotts, it banned even peaceful, consensual, spontaneous conversations between strangers. The net result was that mall patrons were technically prohibited from talking to a stranger about the weather, a current event, or even the latest TV episode of Top Chef. While the rule might turn the mall into a safe zone from bad pick-up lines, it also places a restriction on the content of speech. When the court subjected the regulation to strict scrutiny, it failed to pass constitutional muster.
Even if the court had considered the restriction to be content neutral, the rule burdened substantially more speech than was necessary to advance any of its purported legitimate safety and convenience interests. A rule prohibiting strangers from engaging in impromptu chitchat is akin to a rule one would expect to find in a totalitarian police state, not a suburban shopping mall in Roseville.
The court aptly noted that providing a "stress-free shopping atmosphere" for patrons--the purported intent of Westfield Mall's rules--was not a compelling interest compared with the free speech rights of other individuals in the mall: A shopping mall cannot justify the prohibition of peaceful, noncommercial speech "because it might result in lost profits if shoppers become annoyed or offended and leave." (Snatchko, 187 Cal. App. 4th at 489.)
And just last month, the court of appeal decided a case in which a shopping mall imposed rules granting preferential treatment to labor-related speech--a fact that no doubt would have delighted the labor protestors in the Fashion Valley Mall case. However, the court held that it was improper for the mall to prefer one type of speech over another based on content. It noted that "a shopping mall must allow protests within aural and visual range of a targeted business whenever the mall is open to the public." A mall cannot impose a "blanket ban on the time or place of free speech" unless it is the only way "to prevent substantial disruption of normal business operations." (See Best Friends Animal Soc. v. Macerich Westside Pavilion Property LLC (2011 WL 711584).)
Although California courts have extended free speech protections to shopping malls, they have not done the same for speech in stand-alone stores. While difficult to define, a stand-alone store generally is a place of business not physically attached to another place of business. (See Albertson's, Inc. v. Young, 107 Cal. App. 4th 106, 109 (2003) (individual grocery store).)
For free speech protections to apply on private property, the owner must open the premises for public use so as to "make it the functional equivalent of a traditional public forum." (Albertson's, 107 Cal. App. 4th at 118 (citing Trader Joe's Co. v. Progressive Campaigns, Inc., 73 Cal. App. 4th 425, 433 – 444 (1999)).) Courts consider a variety of factors, including the extent of the invitation by the property owner to the public; the nature of the primary use of the property; any relationship between the speech activities and the primary use of the property; the size of the business; and the public's interest in using the property as a venue for free speech (Albertson's, 107 Cal. App. 4th at 119).
Big-box stores have become more relevant in the free speech debate as they continue to proliferate. Many big-box outlets now replicate the diverse shopping options of a mall, but in one enormous store. For instance, in addition to selling clothing, electronics, home and garden supplies, furniture, and jewelry, many of these stores have large grocery departments, food courts, and open spaces for congregation. Indeed, big-box stores and shopping malls are becoming indistinguishable in terms of the five public-forum factors cited in the Albertson's case.
More than 30 years ago, California took the lead in protecting speech at shopping malls. Only time will tell if the Golden State becomes the first to extend free speech protections to big-box stores.
Marc Price Wolf is an associate in the litigation department at Howard Rice Nemerovski Canady Falk & Rabkin in San Francisco.