Daily Development for
Friday, January 5, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

FIRST AMENDMENT; SHOPPING MALL AS PUBLIC FORUM: Shopping center proprietor held liable for $2 million punitive damages against shopping mall owner whose employees had political activist arrested for petition gathering on shopping center premises in violation of the owner's policy.

Stranahan v. Fred Meyer, Inc., 958 P.2d 854 (Or. App. 1998).

Mall security arranged for police to arrest an initiative petition signature gatherer as part of owner's policy not to permit petitioning activity on its property. The owner was aware that the county district attorney had a policy against prosecuting initiative petitioners for trespass at shopping malls, and that the Oregon Court of Appeals had held that initiative petitioners had a constitutional right to gather signatures at large shopping malls. The petitioner filed suit for false arrest, and after a trial was awarded $125,000 in compensatory and $2 million in punitive damages. The trial court reduced the punitive damages award to $375,000, and both sides appealed.

The Oregon Court of Appeals affirmed the verdict against the mall owner, and reinstated the full amount of the punitive damages award. The court held that the shopping center was large and diversified enough to be considered a "public forum" for First Amendment purposes; the shopping center owner had deliberately set out to create the equivalent of a town square by inviting customers to enter for all of their shopping needs. The court rejected the property owner's claim that it had a constitutional right to arrest persons who interfered with its property rights. The court of appeals also ordered the reinstatement of the full punitive damages award, concluding that the 16:1 ratio of punitive to compensatory damages was not irrational because the monetary harm suffered by the plaintiff did not reflect the damage caused by the mall owner's conduct.

Comment 1: This case is a "must read" for those interested in this thorny issue. There are three opinions, none of them representing a controlling majority. The opinon does not reveal the size the the en banc Court of Appeals panel, but there were two judges not participating, four dissenters and one in concurrence. That can't leave too many for the lead opinion.

The defendant, Fred Meyer Company, as the opinion describes it, has embarked on a lengthy crusade to prevent petition gatherers from using its business premises. Oregon, which has a constitutional initiative provision, is a state in which petition driven initiative drives are common, and undoubtedly most petitioners head straight for their local Fred Meyer Shopping Center to gather names (or would if they could). It is Fred Meyer's long history of opposition to this practice that created a background from which the jury could conclude that the arrest in this case was "malicious."

Comment 2: It is valuable to note that the "Center" in this case was a 100,000 square foot enclosed building that was really little more than a department store. There were a small number of minor retail tenants and licensees (such as an optician), but the bulk of the retail area was devoted to sales by Fred Meyer itself. There were no fountains, gardens, or public gathering areas. This was not a traditional mall serving as a substitute for a town square. It was nothing more than a big store. Nevertheless, the controlling opinions concluded that by its sheer size and volume of sales Fred Meyer had attempted to gather to itself a sufficient proportion of the populace to assume the responsibility of providing access to political speech.

Comment 3: It is also valuable to note the concurrence's view that even if the petitioners were tortiously trespassing, it was unlawful for Fred Meyer to cause theri arrest by a polic officer when Fred Meyer knew that it was the policy of the public prosecutor's office not to prosecute for this activity. (The court somewhat blurs the question of whether the activity was in fact a "crime.")

Comment 4: Although the U.S. Supreme Court has been cautious to impose free speech responsibilities on shopping center owners, Oregon and a few other states have been quite activist in interpreting their own state constitutions. A number of other states go the other way. The DIRT website has a (now somewhat dated) "Pruneyard scorecard" maintained by the International Conference of Shopping Centers, showing that there are a number of decisions in favor of the center owners. Perhaps this post will induce ICSC to provide DIRT with an updated "scorecard."

Comment 5: For other DIRT DD's related to this topic, check the following on the website: DD 6/13/95; DD 9/19/96;DD 10/30/97.

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