Daily Development for Friday, September 7, 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


CONSTITUTIONAL LAW; FREE SPEECH; "PRUNEYARD" RULE:   California limits Pruneyard to circumstances in which free access to public provides a substitute for "state action"  hence, rule will not apply to permit tenant associations to distribute literature in large private apartment complex.


Golden Gateway Center v. Golden Gateway Tenants Association, 2001 WL 987547


This case affirms a decision at 87 Cal.Rptr.2d 22 (Cal. App. 1999) reported, in DIRT as the Daily Development for 8/5/99.


Defendants owned and operated a retail and residential complex in downtown San Francisco with four high rise towers and 1254 apartments. It prohibited soliciting and leafleting of any kind on the premises, even by tenants. Its written regulations, incorporated into every lease, included this prohibition. In the early 1980's, a group of tenants formed a Tenant's Association. Periodically, over time, the association would slip leaflets with information about the Association or its interests under the doors of apartment residents, whether or not they were members.


This activity was tolerated by the management of the complex for more than a decade, when an increase in leafleting led to an exchange of letters that raised the issue that the leafleting violated the policies of the complex.  This exchange did not result in a termination of the activity. In 1996, however, management again raised the issue, in response to a leafleting activity that grew to eight distributions in four months. The Association responded basically that it had a constitutional right to continue its activity, and soon thereafter brought a declaratory relief action to vindicate that right. The trial court found for the Association on the grounds that the earlier exchange of letters in the early 1990's had formed a contract guaranteeing distribution rights to the Association. It did not reach the constitutional issue.


The Court of Appeals, in an unpublished portion of its opinion, reversed the trial court on the contract issue, and thus squarely faced on appeal the constitutional argument for the first time. It held that there was no right under the federal or state constitutions for apartment tenants or others to deliver literature to other apartment tenants.


The Supreme Court of California, in the instant opinion, affirmed the Court of Appeals in a split vote.  Three judges joined in a majority opinion, one judge wrote a special, narrower, concurrence, and three judges dissented.


The whole question, of course, has to do with the application of the Robins v. Pruneyard case, which held that operators of a large private shopping mall had to provide reasonable free speech opportunities because of the nature of their facility as a public gathering place which displaced the traditional town square.  The tenant's association argued that the massive Golden Gateway complex also "wrapped up" the tenants in a concrete box and made it difficult for the association to reach them speech activities on public property.   It noted that the tenants themselves were the precise target of their speech activity, so ordinary public forums would not suffice.


The majority opinion answered a question that has nagged commentators since the whole notion of free speech rights on private property emerged where's the "state action?"  Prior California cases had sidestepped that issue, but the court confronts it here, and concludes that, under the California Constitution, indeed "state action" is a necessary element in the analysis of whether a free speech right exists.  The California Constitution does not prohibit private restraints on speech.


Nevertheless, the court refused to retreat completely from the Robins v. Pruneyard rationale, which it here concluded does involve state action in that the shopping center in that case was acting ain a manner equivalent to the government when it provided, through its shopping mall,  an open gathering place that replaced public forums of a prior time.


Although Robins did not mention state action and did not clearly define the scope of California's free speech clause, we can still look to its reasoning for guidance. To support its holding that the California Constitution protects free speech in a privately owned shopping center, Robins relied heavily on the functional equivalence of the shopping center to a traditional public forum the " " 'downtown[ ]" " ' or "central business district[ ]." . . In finding this functional equivalence, Robins emphasized, among other things, the shopping center's open and unrestricted invitation to the public to congregate freely. . .  Indeed, Robins implicitly exempted " 'an individual homeowner' " from the purview of California's free speech clause presumably because individual homes are not freely and openly accessible to the public. . .  In doing so, Robins indicated that the applicability of California's free speech clause depends in part on the public character of the property.


[Later] [W]e conclude that the actions of a private property owner constitute state action for purposes of California's free speech clause only if the property is freely and openly accessible to the public."


That made this case quite simple.  The Golden Gateway complex did not provide free and open access to the public.  Ergo  no free speech rights within the meaning of Robins v. Pruneyard, No matter how much the tenant's association needed access to the premises in order to deliver its message.


But remember this was an opinion joined in by only three of the seven judges.  The "swing" vote conceivably could join with the three dissenters in another case.  It's important to know where this judge, Judge George, drew his lines.


Judge George maintained that this case should have been decided on the narrowest possible grounds  which meant that there should have been no blanket determination that private apartment owners could always curtail free speech but whether, on balance, it was acceptable that the private owners did so in this case.  In his view, it is critical to look at the kind of speech activity that was involved  the distribution of unsolicited pamphlet.


Although Judge George does not buy into the notion that the California Constitutional guarantee of free speech entails an element of "state action," he concurs that the decided cases do not support speech activity involving the distribution of pamphlets on property that is not freely open to the public.  In other words, even if the apartment here had been publicly owned, and Constitutional free speech guarantees had applied, Judge George would have found no right to distribute unsolicited pamphlets in areas closed to the public, such as interior corridors.


Judge George emphasizes this fact because he is reluctant to conclude that landlords in large apartment complexes have carte blanche to restrict all forms of speech.  What about knocking on your neighbor's door to invite him or her to a political meeting?  What about the conduct of such a meeting in one's own apartment?  In the complex's tenant lounge, or rec room? Judge George comes up with other examples:


"Consider a private landlord who, under penalty of eviction, precludes his or her tenants from displaying in the windows of their apartments the campaign poster of a particular political candidate supported by the tenantor requires the tenants to display in the windows of their homes a poster of the candidate supported by the landlord. Or consider a union or employer that attempts to utilize its power over an individual by precluding certain bumper stickers on vehicles parked in the employer's or union's parking lot, or by requiring that the employee place a certain bumper sticker on his or her vehicle or attend a rally and make a political contribution, unconnected to employmentrelated issues, in support of a candidate favored by the union or employer but not supported by the employee."


The dissent strongly maintains that to recognize free speech rights under the circumstances of this case does not advance the Robins v. Pruneyard rationale very far.  It notes that the issues did not involve commercial or nontenant activity.  Further, it does not involve unusually aggressive activity.  It concedes that the landlord could have so limited the tenant association that it could establish time, place and manner of distribution and even permit tenants to "opt out" of receiving the pamphlets.


In evaluating the ban on distribution, the dissenters would have looked into whether the bar afforded ample alternative channels for communication, whether it was narrowly tailored to accomplish legitimate objectives and whether, on balance, the interests of the tenant association outweighed the interests served by the landlord's ban.  The dissent points out that these are the considerations normally undertaken by a court evaluating a free speech claim.  The majority did not look at these considerations because it concluded, at the outset, that no "state action" existed and therefore no Constitutional analysis was required.

The dissent, like the concurrence would find no specific state action requirement in the California constitutional guarantee of free speech.


Of course, the dissent concludes that if traditional standards had been applied, the ban would have been struck down, since the association had no practical alternative to delivering its message to a private group and since no significant interest of the landlord or the other tenants was served in denying the association the right to slip pamphlets under doors unless the receiving tenant objected.


Comment 1: In Guttenberg Taxpayers and Rent Payers Association v.Galaxy Towers Condominium Association, 688 A.2d 156 (N.J.Super.Ch. 1996), a New Jersey court ruled that a condominium complex with 1026 apartment units, and parking and retail facilities, had an obligation to permit distribution of political literature by non residents if it permitted distribution by its own tenant's association. The rhetoric of Guttenberg would support a general free speech distribution right, subject to time, place and manner restrictions, similar to California and New Jersey regional mall cases, but the ultimate opinion is limited to requiring equality of information flow.


Comment 2: What's the impact of this decision on the steady flow of California decisions involving "less than regional mall" style retail facilities?  Well, it appears that the death knell had already been tolling for application of Robins v. Pruneyard in those situations.  Once case after another has held that the real gist of Robins v. Pruneyard is that the special implicit invitation to the public to gather that exists in malls justifies special free speech responsibilities.  See the DD's for

6/6/01, 12/21/00, 7/9/99, and 9/18/96.


The court doesn't say much about these cases here, but does emphasize that the "invitation of the public to congregate" is the basis for finding that the state action requirement is satisfied.  This would suggest that a private parking lot or even a very large retail space, where only customers of that store are expected to be present and are accommodated, would not be venues in which free speech rights exist, no matter how large.


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