Daily Development for Friday, July 9, 1999
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
CONSTITUTIONAL LAW; FREE SPEECH; "PUBLIC ACCESS" PROPERTY: Ten thousand square foot grocery and retail store is not so central to the societal interest in free speech as to apply the California Pruneyard rule and impose a duty upon the landowner to accommodate political speech on premises.
Trader Joes' Company v. Progressive Campaigns, No. A08723 (Cal. Ct. App. 1st Dist. Div. 2 July 8, 1999)
The noted decision in Robins v. Pruneyard Shopping Center, 153 Cal. Rptr. 854 (Cal. 1979) has continued to haunt shopping center owners in a number of areas of the country. The Pruneyard decision held that shopping centers, as the modern equivalent encouraged use of their premises as public congregation areas, and consequently owed to the public the duty to permit free speech activities on their premises as well, even though normally the First Amendment does not apply to purely private conduct.
The U.S. Supreme Court specifically rejected the Pruneyard rationale in the earlier Lloyd Center case, but state courts are free to interpret their own state constitutional free speech requirements to impose the extended duties. A minority have done so. A listing is set forth in the Pruneyard scorecard, maintained by the International Society of Shopping Centers, which is found on the DIRT website: <http://cctr.umkc.edu/dept/dirt>http://cctr.umkc.edu/dept/dirt Shopping center owners in California, Washington, Oregon, Massachusetts and Pennsylvania, at least, have to deal with Pruneyard issues.
In a case reported as the Daily Development for September 19, 1996, Bank of Stockton v. Church of Soldiers of the Cross of Christ, 52 Cal. Rptr. 2d 429 (Cal. App. 1996), a California appeals court refused to apply Pruneyard to compel permitting speech activities at a 50,000 square foot bank headquarters building. In that case, the court noted that Pruneyard itself had stated that the rule of the case would not apply to a "modest retail establishment," and the bank headquarters, it ruled performed a similar function in its role as a public gather place.
The Bank of Stockton case, as the editor pointed out in the Daily Development, ignored a relatively significant decision in In re Lane, 79 Cal.Rptr. 729 (Cal. 1969), which had been cited with approval by the California Supreme Court in Pruneyard. The Lane decision had required that the owners of a 24,000 square foot grocery store and surrounding parking facilities had a duty to permit union picketing on its premises as a matter of Constitutional free speech. Pruneyard had drawn a distinction between a "modest retail establishment" and a "large supermarket" in drawing a distinction as to what premises clearly did not serve as a public congregation places and what types might. The plaintiffs here argued that the Trader Joe's store was the equivalent of a "large supermarket" and not a "modest retail establishment" and thus fit within the Pruneyard test.
The court here concluded that the plaintiffs had misconstrued the Pruneyard test entirely. Size and function alone were not determinative. Rather it was necessary to balance, in each case, the significance of the public interest in free speech at the premises in question versus the landowner's rights to protection.
Here, unlike in Pruneyard, the landowner had not invited the public to use its premises as a public congregation place, with plazas, walkways and a central courtyard. Because these features are lacking, it is harder to say that the owners of Trader Joe's have indicated that they have no interest in maintaining private control over their premises, even though they invite the public in to shop. By the same token, because there are no such facilities, the court reasoned, the public interest in using Trader Joe's for speech activities is less.
As to the Lane decision, the court clearly has difficulty. There were no plazas, courtyards, or walkways in the grocery store involved in that case, although there was a big parking lot. The court does note that the grocery store in Lane was about a third larger than the one in this case. But the court focuses primarily on the nature of the activity in Lane union picketing aimed directly at the employment activities of the store owner. The instant court states that "The [Lane] court's reasoning was substantially influenced by this fact and the need to prevent the defendant from insulating himself from public comment for his role in the labor dispute."
Comment 1: In fact, the court's extensive efforts to distinguish Lane prove too much. It is a California Supreme Court precedent, never overruled, and in fact cited with approval in a subsequent important Supreme Court opinion. Clearly the appeals court here, although it disagrees with Lane has difficulty adequately distinguishing it.
Comment 2: The real problem with the court's distinguishing Lane on the basis of the content of the speech involved is that it is always dangerous to differentiate in free speech cases based upon the nature of the speech. It is true that in some cases courts have drawn distintinctions between "commercial speech" and "political speech," but to differentiate, as here, between two different forms of political speech is to raise Equal Protection Clause concerns as well as free speech concerns. If the real test of the Bill of Rights, as is often stated is to see how well it protects the unpopular, courts should not be in the business of selecting which kind of speech they deem wish to favor by providing a public forum. Either speech is protected or it isn't.
The argument can be made that the need of the party doing the speaking to use a particular location may be more acute when that location is bound into the very matter about which the party is speaking. But all political speech needs an audience, and speakers must go where the public is located. Ten thousand foot retail outlets with extensive patron traffic certainly are significant free speech locations for those soliciting referendum petitions, as was the case here.
Comment 3: The better argument, of course, is that Lane was wrongly decided on free speech grounds, whatever legitimacy it had as to labor law policy. But the court of appeals here was precluded from reaching that conclusion, since Lane came from a higher court. Let's hope that the petitioners here have the will and the pocketbook to push this case one step higher, so that the California Supreme Court, a very different one than the court that decided Lane, and, for that matter Pruneyard, will have another crack at those precedents.
Comment 4: For another interesting Pruneyard case, in which the speech advocates won big with a punitive damages award against the Fred Meyer chain in Oregon, see: Stranahan v. Fred Meyer, Inc., 958 P.2d 854 (Or. App. 1998).
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