Private Shopping Malls - The "Not-So-Private" Private Property


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Every since the Pruneyard decision, public shopping malls have been seen as an extension of the public square. Although the property is private, protesters have free speech rights granted by the U.S. and California Constitutions. This can create problems for landlords who are trying to provide a pleasant retail environment for their guests and tenants.

Recent case law has changed the rules, but Allen Matkins has created a set of model rules for shopping center landlords. These rules address the time, place and manner issues upon which free speech can be limited in shopping malls.

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Private Shopping Malls - The "Not-So-Private" Private Property

  1. 1. Private Shopping Malls –The “Not-So-Private” Private Property
  2. 2. AgendaGeneral Overview of the IssuesRelevant Case LawCommon Legal Challenges to RulesKey Elements of Allen Matkins’ RulesLitigation and Enforcement Tips
  3. 3. Protesters have become increasinglyactive at private shopping centers Unions Organizations supporting specific rights (i.e., pro-life, animal rights) Religious groups Solicitation of funds Political organizations & causes
  4. 4. Protest activities at shopping centers can bedisruptive to businessPicketingShoutingChantingDisplaying disturbingimagesUsing inflatableobjectsApproachingshoppersPassing out fliersSeeking signatures
  5. 5. Free-speech rights in the U.S. Constitution “Congress shall make no law …abridging the freedom of speech…”
  6. 6. Free-speech rights in the California Constitution “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
  7. 7. Free speech rights under California Constitutionhave been broadly interpreted, at the expenseof private property rightsU.S. Constitution: right of free speech has limited applicabilityto private shopping centersState Constitutions: may grant broader free speech rights thanthe US Constitution California courts have expanded free speech rights at private shopping centers
  8. 8. Free speech rights may trump private property rights ifthe property can be characterized as a “public space”Legal ArgumentsOwner invites public onto property andsurrenders a level of controlShopping centers serve a roletantamount to public space Public Policy Arguments Suburban growth has changed how we organize cities and create public spaces Private shopping centers have replaced downtowns as the public gathering places
  9. 9. General Overview of California Case LawOver the past 30 years, California courts have significantly expandedfree speech rights at the expense of private property rightsCases can be broken into three periods: – Early cases before Robins v. Pruneyard (1979) – Cases after Robins v. Pruneyard – Cases after Fashion Valley (2007) This expansion is contrary to almost every other state
  10. 10. Early Cases Before Robins v. PruneyardMarsh v. State of Alabama, 326 U.S. 501 (1945) – Company town served as a public forum – Free speech rights trumped private property rightsLloyd Corp v. Tanner, 407 U.S. 551 (1972) – War protesters not allowed to leaflet within an indoor mall
  11. 11. Significance of Robins v. Pruneyard23 Cal.3d 899 (1979)Free speech rights may trump private property rightsReasonable time, place and manner restrictions may beimposed by shopping center owners First sea change in California law related to free speech rights at private shopping centers
  12. 12. Levels of judicial scrutiny depend upon type ofspeechFor any content-based speech restriction, its subject to strictscrutiny, requiring that it be: i. narrowly drawn, and ii. necessary to serve a compelling interestFor any content-neutral speech restriction, it must satisfyintermediate scrutiny, requiring that it be: i. narrowly tailored ii. serve a significant government interest, and iii. leave open ample alternative avenues of communication
  13. 13. Cases after Robins v. PruneyardH-CHH Associates v. Citizens for RepresentativeGovernment, 193 Cal.App.3d 1193 (1987) – Case highlights what shopping center rules should not do – Court held in favor of petitioners, detailing specific reasons as to why the mall’s rules were and were not constitutionalNeedletrades Union v. Superior Court, 56 Cal.App. 4th 996 (1997) – High-water mark for shopping center owners – Court held that rules are constitutional, specifically those for (1) application requirement, (2) protest materials restriction, and (3) time and place restrictions on activities
  14. 14. Fashion Valley Mall v. NLRB 42 Cal. 4th 850 (2007)Mall rule prohibited any leafleting targeting its tenantsThe Court ruled in favor of union leafletters, holding that themall’s rule was illegal because it was a content-basedrestriction that did not survive strict scrutiny Second sea change in California law related to free speech rights at private shopping centers
  15. 15. Cases After Fashion ValleyUnited Brotherhood of Carpenters v. National Labor Relations Board,540 F.3d 957 (2008) – Court ruled in favor of union leafleters – Limited six standard types of rules used at shopping centersMatthew Snatchko v. Westfield, 187 Cal.App.4th 469 (2010) – Court ruled in favor of a pastor discussing religion with strangers – No content-based restrictionsBest Friends Animal Society v. Macerich, 193 Cal.App.4th 168 (2011) – Court ruled in favor of protesters opposing a pet store – Shopping center rules cannot expressly favor certain types of speech
  16. 16. Common legal challenges to rulesContent: restriction based on content of speech Avoid any type of content-based restriction (strict scrutiny)Location: activities limited to certain areas Allow protesters to locate within a safe distance of their targetDisplay type: restrictions on types of displays Use restrictions tied to violations of lawTime: access restricted on certain days of the year Avoid complete bans
  17. 17. Landlords may end up fighting a two-frontbattle…Protesters vs. Owners Tenants vs. OwnersProtesters may file suit against Tenants may file suit againstowners alleging violations of their landlords for failing to protect theirfree speech rights leasehold rights by allowing protestsCourts and law enforcement havesided with free speech Owners, as landlords, have contractual obligations to tenants, such as the covenant of quiet enjoyment
  19. 19. What is theAllen Matkins Model Time/Place/Manner Policy?Model rules that landlords can use to impose reasonablerestrictions on the time, place and manner of non-commercial expressive activityRules have been crafted tocomport with California lawDesigned to provide thegreatest level of protection toshopping center ownersRules must be customized forthe particular site/circumstances
  20. 20. Disruptive or non-conforming protests may belegally restricted• Blocking entrances or exits• Harassing customers – Physical not permitted, verbal statements have wide latitude, except imminent threats• Property damage• Disorderly conduct Fights Weapons Excessive capacity/hazards Potter Stewart Test• Offensive verbal statements are likely permitted
  21. 21. The law is tilted in favor of speech rights but thelandlord has some remediesInjunction Temporary Restraining Order (TRO)Most common remedy, yet difficult to Can be obtained on emergency basisobtain given First Amendment if necessaryprotections Followed by preliminary and/orCourt will balance likelihood of permanent injunctionsuccess with likelihood of harmMust be no more restrictive thannecessary to ensure conformancewith law or proper TPM restrictionsMust be content neutral
  22. 22. “Damages” is another legaloption for landlordsTheories – Trespass Theory – Beyond allowed purpose – Nuisance Theory – Intentional TortsCan be pursued after, in lieu of, or in conjunctionwith injunction remedyCollectability will be a concern – Association can be sued but assets may be limited – Individual protesters may not be identifiable  Expect strong resistanceAnti-SLAPP law creates numerous obstacles
  23. 23. Practical considerationsUse judgment – No “one size fits all” remedyIdentify and discuss with group leader – Look for resolution that satisfies immediate needsContact police – Especially for disruptive or dangerous situationsConsider legal options – Legal options are slower, even “emergency” relief may take several days to obtain – Police will enforce injunction if necessaryClosely document improper activity – Photos, videos may be necessary evidence
  24. 24. We recommend that thelandlord post signs atshopping centers
  25. 25. We recommend that thelandlord post signs atshopping centers
  26. 26. ContactMatthew Marino Sean SouthardPartner PartnerAllen Matkins Leck Gamble Mallory & Allen Matkins Leck Gamble Mallory &Natsis LLP Natsis ssouthard@allenmatkins.comJonathan LorenzenAssociateAllen Matkins Leck Gamble Mallory &Natsis