Daily Development for Thursday, November 29, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

CONSTITUTIONAL LAW; FREE SPEECH; PRUNEYARD DOCTRINE: Pruneyard on the ropes; California courts continue to pummel the doctrine upholding free speech in private fora.

Lushbaugh v. Home Depot U.S.A., Inc., 20001 WL 1468923 (Cal. App. 2001)

We reported a few months ago the California Supreme Court decision in Golden Gateway Center v. Golden Gateway Tenants' Association, 111 Cal. Rptr. 2d 336 (Cal. 2001), the DD for 9/7/01. That case was a plurality opinion to the effect that a tenant's association could not conduct free speech activities in a large public housing project because that project did not fit within the category of public fora recognized in the famous Pruneyard decision as substitutes for the town square and therefore, even though in private ownership, subject to Constitutional free speech requirements. The court concluded that, as a minimum, the Pruneyard analysis would only be applied to private property that was "freely and openly accessible to the public."

The "swing vote" in the case, Justice George, voted with the plurality's conclusion only because he felt, on balance that the tenant's association in this case had not made a strong enough argument that its need to communicate its ideas compelled the landlord to provide access to private corridors of the apartment complex, thus intruding on the privacy expectations of the landlord and the other tenants. He did not foreclose the notion that, given the particular nature of a message and the special needs of the party seeking to communicate the message, free speech rights could be established in private property closed to the public.

Three dissenters would have applied Pruneyard to these facts because, in their view, the tenants made a compelling argument that they had no reasonable alternative to deliver their message to the special group of apartment dwellers that was their target audience.

The Golden Gateway case arose in the context of a welter of ongoing litigation concerning Pruneyard. The Supreme court had vacated two earlier court of appeals decisions, Waremart, Inc. v. Progessive Campaign, Inc., 102 Cal. Rptr. 2d 392 (Cal App. 2000), review granted 3/14/01 (the DD for 12/21/00), and Young v. Raley's, Inc., 107 Cal. Rptr. 2d 172 (Cal. App. 2001, review granted 8/15/01 (the DD for 6/6/01). Both cases involved the question of whether Pruneyard applied to free standing stores that did not seek to provide the kind of non-retail public gather opportunities traditionally provided in regional shopping malls. The reason stated for such vacation was the pending appeal in Golden Gateway, but the court barely mentioned either case in the opinion, except to mention that Waremart was "currently on appeal," and still has not weighed in. Not a surprising result, in light of the heavily divided court.

In the meantime, however, we have this little gem, involving another "big box," Home Depot. It demonstrates the continued skepticism of the lower appeals courts in California toward the validity of Pruneyard, but beyond that, in light of the hanging shoes ready to drop from the Supreme Court, the appeals court here kept its focus very narrow.

Home Depot in California had an established set of "time, place and manner” regulations designed to give at least some obeisance to the Pruneyard doctrine. Store managers were instructed to provide a "free speech area" about eight feet square near to each public exit from the store and within unobstructed line of sight of the pedestrian traffic from the store. But the guidelines permitted site managers to alter the arrangement "depending upon the individual store's conditions, permits and restrictions."

The Home Depot facility in question had a main entrance that was a wide opening served by a "roll up" door that was left open most of the time the store was open, and customers as well as store personnel used it to carry out various sized loads, including large loads carried in forklifts. Plaintiff sought to collect referenda signatures (a well established business in California), and was allocated to a free speech area near this exit. But the store complained (and plaintiff acknowledged) that he frequently left the area to address store patrons concerning his petition. The store's safety director ultimately concluded that plaintiff was too unruly for this location and closed that free speech area and relocated plaintiff to a similar area outside of a lesser used public entrance. Plaintiff again strayed beyond his boundaries here, and ultimately the safety director had plaintiff arrested, giving rise to this lawsuit.

The trial court granted summary judgment on the grounds that Home Depot was not a public forum of the type identified in Pruneyard (despite its 94,000 square feet and 35,000 customers per week). Further, the court held that even if Home Depot was required to accommodate free speech, its rules were reasonable and properly implemented.

The California Court of Appeals affirmed, but only on a very narrow ground. It read the record as established that plaintiff conceded that Home Depot's rules were reasonable, and indicated that the only question was whether the rules were properly implemented by the safety officer. Since plaintiff also admitted that he had strayed from his marked box, and that when he was near the big entrance his confrontations with customers may have caused a safety concern, the court had little difficulty finding that summary judgment was appropriate (query whether the plaintiff would have agreed that he admitted to all these things.)

But, in passing the court notes two opinions in dicta that are worth noting. First, the court specifically disagrees with prior authority on the question of the level of judicial review to be given to a private owners' "time, place and manner" rules. An earlier decision, H-CCH Associates v. Citizens for Representative Government, 238 Cal. Rptr. 841 (Cal. App. 1987), had found that the level of review was the "strict scrutiny" that would be applied to a public agency's attempt to curtail a protected constitutional right. The court noted that, had it the issue before it, it would have not applied such a standard, but would have inquired only whether the rules were "reasonable" attempts to balance free speech and its own normal business operations. But, because it concluded that the plaintiff had not challenged Home Depot's rules, the court found that the validity of the H-CCH case was not in contention here.

Second, the court noted that the two earlier cases vacated by the Supreme Court, Waremart and Young, had both concluded that free standing stores that provided no public gathering place were not subject to Pruneyard. It indicated that it would concur in those results, but elected not to decide the case on those grounds in light of the fact that the issue was now under review above.

The court then proceeded to focus on whether the local manager had acted consistently with Home Depot's rules. Since the rules, albeit in rather broad and obscure language, permitted the local managers to alter the free speech accommodations, the court held that the store manager had acted within his authority. It went on to say that Home Depot clearly was entitled to implement a concern for public safety when it relocated him after he had strayed into traffic and caused possible safety risks through collisions with fork lifts. As to the challenge by the plaintiff that whether the eight foot box was too narrow a constraint, but court ignores the fact that it had earlier stated that Home Depot's rules were not in question, and analyzes the use of the box, which was wholly dictated by those rules. It found that the guidelines were "not unreasonable."

"[The guidelines] provide an opportunity for persons with political messages to set up a table and/or a sign so that anyone interested can step forward for further information. That is all that Pruneyard requires. The company need not give activists free rein to directly accost every customer entering the store."

Comment: Although the court states that it will neither challenge the "strict scrutiny" precedent, it clearly does exactly in reviewing the acceptability of the eight foot square "free speech area." The blanket use of such a restriction clearly would not have been acceptable to California courts a decade and a half ago, and probably not to the Pruneyard court. The court's general breeziness in dealing with the "time, place and manner" issue appears to be driven, at least in part, by the fact that it has already also concluded that Pruneyard ought not to apply to "big boxes" anyway - the other issue it said that it would dodge.

As the editor has free rein to directly accost all those who access this service, and takes full advantage, it is hard to criticize anyone wishing to exercise free speech rights. But since the editor is a fervent believer that government ought to solve its own problems, and believes that government could solve this one with intelligent land use policies that create public gathering places and don't carve up the world into tiny private enclaves, the author is happy to see Pruneyard trimmed.

In any event, everyone continues to wait for the further shoe dropping by the California Supremes.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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