by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

CONSTITUTIONAL LAW; FREE SPEECH; "PUBLIC ACCESS" PROPERTY: California continues its retreat from Pruneyard - Bank may prohibit religious solicitations on private sidewalk between parking lot and 30,000 square foot headquarters building. Bank of Stockton v. Church of Soldiers of the Cross of Christ, 52 Cal. Rptr. 2d 429 (Cal. App. 1996)

Although the U.S. Supreme Court has ruled that the owner of private retail establishments, such as malls and shopping centers, may prohibit solicitations, the California Supreme Court, interpreting the California Constitution, established a policy that was more pro-speech in Robins v. Pruneyard Shoppnig Center, 153 Cal. Rptr. 854 (Cal. 1979). The Pruneyard decision noted that large retail malls are the modern day equivalent of the town square and that owners of such facilities cannot both invite in the public and exclude those who wish to communicate with them through speech activities.

The Pruneyard decision pointed out that the basis of its holding suggested its own limitations - that owners of "modest retail establishments" that were not performing a "quasi-town square" function would not be covered. Since that time, there have been a number of decisions, primarily dealing with medical facilities beset with anti-abortion protesters, that have been able to escape the rigors of Pruneyard by arguing that they fit within the "modest retail establishment" category.

As described by the court, the facilities in prior cases were of a size scaled to the bank premises at issue here, albeit somewhat smaller. The largest was a 26,000 square foot, two building complex, while the court describes the building here as a two story building with 15,000 square feet on the first floor. The parking lot was a "quarter of a block" and, like the sidewalk between it and the building, designed primarily to serve bank customers, although there was no exclusion of the general public.

One difference, of course, is that medical office buildings tend to serve a far smaller group of clientele than would a retail banking establishment. The court makes nothing of this distinction, although it does note that if the bank could show a legitimate concern about interference with banking functions or security, it would be able to exclude the solicitors on that ground alone. This argument was not necessary here, however, since the Church was unable to overcome the privacy rights of the bank as an owner of private property.

The court also indicates that the issues might be different if the speech was directly addressed to the functions of the bank, instead of general speech activity. This might also be true of speech governed by the U.S. Supreme Court rule in Lloyd Corp. v. Tanner, 92 S.Ct. 2219 (1972). But here the Church was simply raising money for its own activities.

Comment 1: The court is quite right in pointing out that Pruneyard did emphasize the size and significance of the suburban mall in delineating the free speech interests at stake in the case. And the court did characterize its ruling as inapplicable to a "modest retail establishment." On the other hand, it cited with approval In re Lane, 79 Cal.Rptr. 729 (Cal. 1969), in which a free speech right was upheld on a private sidewalk adjoining a supermarket not located in a shopping center. It is true that Lane involved picketing addressed specifically at the store's activities, but the court makes little of this issue at this point in the Pruneyard opinion, stressing instead the significance of the free speech considerations at stake. The court specifically points out the facts Lane, making clear that it knows that it is doing. One is driven to the conclusion that Lane did not involve what the court would identify as a "modest retail establishment." If Lane didn't, then neither did the case at hand.

Remarkably, the Bank of Stockton court neither cites nor discusses Lane. Is it possible that the church's lawyer missed its significance?

Comment 2: In Ferner v. Toledo-Lucas County Convention and Visitors Bureau, Inc., 610 N.E.2d 1158 (Ohio Ct. App. 1992) an Ohio court held that a privately-owned convention center located on publicly-owned land, although located on private property, could not prohibit expressive activities without adopting reasonable rules which regulate the time, place and manner of such activity. The Ferner court noted that court in Massachusetts, Pennsylvania and Washington, as well as California, have found that their state constitutions mandate a free speech right on private proprerty in certain circumstances, but that Michigan, North Carolina, Wisconsin and Arizona have rejected the concept.

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