T Nation

Are Malls Private Property?


Calif. Court: Malls Can’t Bar Protesters

SAN FRANCISCO – The California Supreme Court has ruled that shopping malls can’t stop protesters from urging the boycott of stores while on mall property.

In a 4-3 decision Monday, the justices ruled that the Fashion Valley mall in San Diego violated California’s free speech laws when it kicked out demonstrators in 1998.

Members of a workers’ union at the San Diego Union-Tribune newspaper were forced out of the mall for distributing leaflets urging the boycott of the Robinsons-May store.

The union was involved in a dispute with company management and wanted to hurt Robinsons-May’s business because it advertised in the newspaper.

The high court ruled that California’s free speech laws protect such demonstrations.

© 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.


Do state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner’s property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments?


Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against ‘Zionism.’ On a Saturday afternoon they set up a card table in a corner of PruneYard’s central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly and so far as the record indicates was not objected to by PruneYard’s patrons.

Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard’s perimeter. Appellees immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access to the PruneYard for the purpose of circulating their petitions.

This seems pretty random I am sure, but what the fuck, it’s not another Ron Paul thread (yet…anyway). Should shopping malls be considered private property and be allowed to ban protesters, or should they have to let it continue because they “invite” people in and create a “public space”?


That’s just wrong. Leave it to the loony, legislate from the bench left wingers to strip private property rights.

…Well this is bull plop.

What the fuck happened to private property?

Regardless, Ron Paul Ron Pauled the Ron Paul when he Ron Pauled the Ron Paul with the Ron Pauling Ron Paul. It’s all very Ron Paul.

We already experienced this locally. Right after this every store in our city had tons of petitioners hanging out in front of the doors.

Lets just say it really pissed off everyone. Some stores put up signs apologizing, and explaining how they were not legally allowed to remove these people.

I believe the only petitions that actually got signed were the ones to get rid of these people.

Awful, but hey, welcome to California.

As much as I may groan about the decision - well, that is why I don’t live in California, so there is a solution: vote with your feet.

As for the “should” part of the OP’s question, of course malls should be allowed to squelch “free speech” inside the walls of their property. Malls are in the business of providing shopping to private citizens, not creating public forums.

Unless they are fulfilling some “government function”, then they should get to do what they want within their walls. It isn’t any more a “public place” than is a bar, a restaurant, or a driving range.

California courts make a mockery of the law - but again, that’s no secret, so relocate somewhere that respects private property rights if you can.

Good stuff here:


[i]The Right to Shout ‘Boycott’ in a Crowded Shopping Mall

Posted on December 28, 2007, 1:05pm | Jacob Sullum

This week the California Supreme Court ruled that the state constitution requires a private shopping mall to allow demonstrations urging customers to boycott its tenants. The case stemmed from a labor dispute that led 30 to 40 members of the Graphic Communications International Union to distribute leaflets in front of the Robinsons-May department store at San Diego’s Fashion Valley Mall in 1998. The leaflets laid out the union’s complaints about The San Diego Union-Tribune’s treatment of its employees and asked people not to shop at Robinsons-May, a major advertiser in the paper. The mall stopped the leafletting, noting that the union had not applied for a permit and in any event was violating the mall’s rule against “impeding, competing or interfering with the business of one or more of the stores or merchants in the shopping center by…urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center.”

By declaring that the mall has no right to enforce that rule, the California Supreme Court extended a line of cases in which it has held that people have a constitutional right to freedom of speech on other people’s property. The U.S. Supreme Court at one time dallied with that notion but has since repudiated it, so the California Supreme Court now bases its position on the state constitution’s free speech guarantee, rather than the First Amendment. As Justice Ming W. Chin noted in dissenting from this week’s decision, California is virtually alone in holding that the constitutional right to freedom of speech applies to private parties as well as the government. With the exception of New Jersey, all the other states, including those with free speech guarantees essentially the same as California’s, either have never taken this approach or have renounced it.

There’s a good reason for that. Freedom of speech depends on property rights. If you are forbidden from buying, renting, or borrowing the means to get your message out, whether it’s a printing press, a meeting room, TV time, or a computer with an Internet connection, your right to speak your mind does not amount to much. By the same token, property rights help define the limits of the right to free speech. I don’t have a right to hold a rally in your living room or write an article on your computer (or cry “fire” in your theater) without your permission. Once freedom of speech is divorced from property rights, courts have to weigh the importance of the speech against the interests of the property owner on a case-by-case basis, which leads to arbitrary and unpredictable results. Meanwhile, by undermining property rights, courts ultimately make freedom of speech less secure.

A PDF of the decision is available here: http://caselaw.findlaw.com/data2/californiastatecases/S144753.PDF [/i]

I don’t think malls are public property. They are not goverment owned and financed. They are privately owned and financed by investors.

Are there plans to appeal and bring the case to the federal level?

[quote]jsbrook wrote:

Are there plans to appeal and bring the case to the federal level?[/quote]

The case was adjudicated under California’s free speech laws, not the First Amendment. It ends at the California Supreme Court.

EDIT: the case was certified by the DC Circuit to the California Supreme Court to answer a question of state law. The case might have more movement in the DC Circuit, depending on the issues, but as to the “free speech rights” under California law, this decision ends inquiry into that question.

I haven’t read the opinion, but from Jacob Sullum it seems that it wouldn’t be “appealable” per se, in that the CA court decided a CA law issue - the USSC can’t overrule that.

But the mall owners could bring a new case in federal court claiming their own First Amendment rights were being infringed - the theory would be that they can’t be forced to speak, similar to the theory that parade organizers can exclude certain participants that was advanced in Hurley ( http://www.law.cornell.edu/supct/html/94-749.ZO.html ).