Cal. Constitution Art. I sec. 1; Art. I sec. 2(b); Art. I sec. 3.

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy

SEC. 2. (a) 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.

(b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. As used in this subdivision, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

SEC. 3. (a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

(b) (1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. (2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer. (4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7. (5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records. (6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses. (7) In order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, as specified in paragraph (1), each local agency is hereby required to comply with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), and with any subsequent statutory enactment amending either act, enacting a successor act, or amending any successor act that contains findings demonstrating that the statutory enactment furthers the purposes of this section.

 

Carolene Products’s footntote 4

United States v. Carolene Products Co., 304 U.S. 144 (1938)

[A federal statute, enacted after heavy lobbying by the dairy industry, prohibited interstate shipment of a product known at the time as “filled milk”, which consisted of ordinary milk with some of the milk fat removed and replaced by vegetable oils. The Court readily upheld the measure under Congress’s power to regulate commerce. Referring to legislative findings that the product was a threat to public health, Justice Stone stated that:]

There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.

[At that point, he appended what has come to be known as “Footnote 4”:]

[1] There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth

[2] It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

[3] Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

[Internal citations omitted, and paragraph numbers added. Ed.]

 

Speech

Dailey v. Superior Court (1896), 112 Cal. 94

Dailey v. Superior Court (1896), 112 Cal. 94, 44 P. 458

GAROUTTE, J.

One Durrant was upon trial in the city of San Francisco, charged with murder, and, while the jury was being impaneled, the petitioner, Dailey, advertised by posters and newspapers that he would produce in a certain theater in said city of San Francisco a play entitled “The Crime of a Century.” Thereupon, Durrant presented an affidavit to the court wherein his trial was pending, setting forth that said play was based upon the facts of his case, as established at the preliminary examination and the coroner’s inquest, and that the production of said play during the progress of his trial would be an interference with the administration of justice, and deprive him of a fair and impartial trial. . . . Upon the presentation of the affidavit, the superior court made an order directing this petitioner, Dailey, to desist and refrain from giving any public performance of said play, and further ordered him to cease from advertising the same. The present proceeding is one of certiorari to review the action of the court in making the aforesaid order.

We are entirely clear that the court had no jurisdiction to make the order which forms the basis of this proceeding, for such order was an attempted infringement upon rights guaranteed to every citizen by section 9, article I, of the constitution of this state. That section provides: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely speak, write, and publish his sentiments is unlimited, but he is responsible at the hands of the law for an abuse of that right. He shall have no censor over him to whom he must apply for permission to speak, write, or publish, but he shall be held accountable to the law for what he speaks, what he writes, and what he publishes. It is patent that this right to speak, write, and publish cannot be abused until it is exercised, and before it is exercised there can be no responsibility. The purpose of this provision of the constitution was the abolishment of censorship, and for courts to act as censors is directly violative of that purpose. This provision of the constitution as to freedom of speech varies somewhat from that of the constitution of the United States, and also more or less from the provisions of many state constitutions treating of this question; but, if there is a material difference in the various provisions, it works no harm to this petitioner, for the provision here considered is the broader, and gives him greater liberty in the exercise of the right granted.

 

We conclude that the order made by the trial court was an attempted restraint upon the right of free speech, as guaranteed by the constitution of this state, and that petitioner’s mouth could not be closed in advance for the purpose of preventing an utterance of his sentiments, however mischievous the prospective results of such utterance. He had the right of free speech, but at all times was responsible to the law for an abuse of that right.

For the foregoing reasons the order is annulled, as being beyond the power of the court to make.

 Danskin v. San Diego Unified School Dist. (1946), 28 Cal.2d 536, 171 P.2d 885

RAYNOR, J.

Petitioners are members and officers of the San Diego Civil Liberties Committee affiliated with the American Civil Liberties Union. On January 10, 1946, they filed an application with respondent board for the use of the Roosevelt Junior High School Auditorium for a series of meetings on the general theme of the “Bill of Rights in Postwar America.” In December, 1945, the board had adopted rules and regulations to govern the use of school property for public purposes and as a civic center. In their application, petitioners stated that they would not comply with rules 4, 7, 11, 17 and 20, which they claimed were in violation not only of the Civic Center Act but of their constitutional rights.

[In 1945, the California legislature adopted the following measure:] Section 19432 (as amended by Stats. 1945, ch. 1213): “Any use, by any individual, society, group, or organization which has as its object or as one of its objects, or is affiliated with any group, society, or organization which has as its object or one of its objects the overthrow or the advocacy of the overthrow of the present form of government of the United States or of the State by force, violence, or other unlawful means shall not be granted, permitted, or suffered.

“Any person who is affiliated with any organization, which advocates or has for its object or one of its objects the overthrow of the present government of the United States or any State, Territory, or Possession thereof, by force or violence or other unlawful means, or any organization of persons which advocates or has for its object or one of its objects the overthrow of the present government of the United States or any State, Territory, or Possession thereof, by force or violence or other unlawful means, is hereby declared to be and is characterized, a subversive element.

“Notwithstanding any of the other terms of this chapter, no such governing board shall grant the use of any school property to any person or organization who or which is a subversive element as herein defined

“For the purpose of determination by such governing board whether or not such person or such organization of persons applying for the use of such school-property, is a subversive element as herein defined, such governing board may require the making and delivery to such governing board, by such person or any members of such organization, of affidavits in form prescribed by such governing board, stating facts showing whether or not such person or organization is a subversive element as herein defined.”

Petitioners contend that this section on its face violates freedom of speech and of peaceable assembly as guaranteed by the Constitution of the United States and the Constitution of California.

Freedom of speech and of peaceable assembly are protected by the First Amendment of the Constitution of the United States against infringement by Congress. They are likewise protected by the Fourteenth Amendment against infringement by state Legislatures. However reprehensible a Legislature may regard certain convictions or affiliations, it cannot forbid them if they present “no clear and present danger that they will bring about the substantive evils” that the Legislature has a right to prevent. “It is a question of proximity and degree.”

When the United States Supreme Court held in Bridges v. California [1941] that the suppression of freedom of speech in the absence of a clear and present danger of substantive evils is a violation of the constitutional guaranty of free speech, it adopted the views of Mr. Justice Holmes and Mr. Justice Brandeis in their minority opinions in Gitlow v. New York, 268 U.S. 652, 672 [45 S.Ct. 625, 69 L.Ed. 1138]; Whitney v. California, 274 U.S. 357, 372 [47 S.Ct. 641, 71 L.Ed. 1095], and other cases. These opinions were based on the reasoning that doctrines advocating the overthrow of the government by force do not of themselves constitute a substantial danger, and that the state is therefore not justified in suppressing the freedom of speech of those who happen to be members of an organization committed to such doctrines.

One must inquire why the measure in question seeks to prohibit “subversive elements“ from holding meetings in a school building, when presumably they can hold them elsewhere without arousing fears of baneful consequences. Is it reasonable to suppose that meetings that would be harmless elsewhere would take on a sinister quality in a school building? When one searches deeper for the reason that motivates the prohibition of such meetings, there is no escaping the conclusion that the Legislature denies access to a forum in a school building to ”subversive elements,“ not because it believes that their public meetings would create a clear and present danger to the community, but because it believes the privilege of free assembly in a school building should be denied to those whose convictions and affiliations it does not tolerate. What it does not tolerate it seeks to censor.

The state is under no duty to make school buildings available for public meetings. If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. Nor can it make the privilege of holding them dependent on conditions that would deprive any members of the public of their constitutional rights. A state is without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is the use of state property. Since the state cannot compel ”subversive elements“ directly to renounce their convictions and affiliations, it cannot make such a renunciation a condition of receiving the privilege of free assembly in a school building.

The convictions or affiliations of one who requests the use of a school building as a forum are of no more concern to the school administrators than to a superintendent of parks or streets if the forum is the green or the market place. The ancient right to free speech in public parks and streets cannot be made conditional upon the permission of a public official, if that permission is used as an ”instrument of arbitrary suppression of free expression.“ It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable. Censorship of those who would use the school building as a forum cannot be rationalized by reference to its setting. School desks and blackboards, like trees or street lights, are but the trappings of the forum; what imports is the meeting of minds and not the meeting place.

The very purpose of a forum is the interchange of ideas, and that purpose cannot be frustrated by a censorship that would label certain convictions and affiliations suspect, denying the privilege of assembly to those who hold them, but granting it to those whose convictions and affiliations happen to be acceptable and in effect amplifying their privilege by making it a special one. In the competitive struggle of ideas for acceptance they would have a great strategic advantage in making themselves known and heard in a forum where the competition had been diminished by censorship, and their very freedom would intensify the suppression of those condemned to silence. It is not for the state to control the influence of a public forum by censoring the ideas, the proponents, or the audience; if it could, that freedom which is the life of democratic assembly would be stilled. And the dulling effects of censorship on a community are more to be feared than the quickening influence of a live interchange of ideas.

 

Gerewan Farming Inc. v. Lyons (2000), 24 Cal.4th 468

Gerewan Farming, Inc. v. Lyons (2000), 24 Cal.4th 468, 12 P.3d 720, 101 Cal.Rptr.2d 470

 [This opinion is an extended discussion of free speech rights under the California Constitution by Justice Stqnley Mosk.]

 MOSK, J.

The First Amendment to the Constitution of the United States, one of the provisions of the Bill of Rights, states: “Congress shall make no law … abridging the freedom of speech, or of the press ….” Article I of the Constitution of the State of California, entitled the Declaration of Rights, states in subdivision (a) of section 2: “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.” [The phrase “Article I” hereafter refers only to the California Constitution, not to the First Amendment of the United States Constitution. Ed.]

In Glickman v. Wileman Brothers & Elliott, Inc. (1997) 521 U.S. 457 (hereafter sometimes Glickman), a case of first impression, the United States Supreme Court, by a bare five-to-four majority, concluded that a marketing order issued by the Secretary of Agriculture of the United States did not implicate any right to freedom of speech under the First Amendment by compelling funding of generic advertising-that is, advertising for a commodity as such, without reference to brand, etc

In this cause, itself a case of first impression, we consider whether a marketing order issued by the Secretary of Food and Agriculture of the State of California implicates any right to freedom of speech under either the First Amendment or article I by compelling funding of generic advertising. As we shall explain, we conclude that the marketing order in question does not implicate any right to freedom of speech under the First Amendment, but does indeed implicate such a right under article I.

[Plaintiff-appellant Gerewan Farms alleged that it] produces and handles plums; plums constitute a lawful product; it has developed, and uses, a brand for marketing purposes; it engages in commercial speech about its own branded plums through advertising; its message is not false or misleading; nonetheless, the California Plum Marketing Program compels it to fund commercial speech in the form of generic advertising about plums as a commodity against its will, and does so to some appreciable extent; the compulsion of funding reduces the amount of money available for its own advertising; the generic advertising, otherwise undescribed, “reflects … viewpoints,” political and ideological as well as commercial, “to which it does not subscribe,” and indeed with which it “vehemently disagrees.” It “disagrees” with, and indeed “abhors,” the generic advertising, otherwise undescribed, both on political and ideological grounds, as “socialistic” and “collectivist,” and also on commercial grounds, as “grouping all … plums as though they are the same” and as “embarrassingly silly, idiotic and/or totally ineffective.”

Subsequently, a majority of the United States Supreme Court, in an opinion by Justice Stevens, concluded that Marketing Order No. 917, which was issued by the United States Secretary of Agriculture, did not implicate the right of parties including Gerawan to freedom of speech under the First Amendment by compelling funding of generic advertising [citing Glickman].

The issue that we address on review is whether the California Plum Marketing Program, issued by the California Secretary of Food and Agriculture pursuant to the CMA, implicates Gerawan’s right to freedom of speech under either the First Amendment to the United States Constitution or article I of the California Constitution by compelling funding of generic advertising.

[Justice Mosk provided a thorough review of the U. S. Supreme Court’s precedents relating to freedom of speech. He then went on:] Article I’s free speech clause took its present language and designation in 1980. From there, it traces itself back to 1974, with the same language, but with a different designation as section 2. Then to 1879, when the present California Constitution was framed, with a different designation as section 9, but with almost the same language: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” And then to 1849, when the original California Constitution was framed, with the same language and designation.

Article I‘s free speech clause finds its prehistory outside of California in the New York Constitution and ultimately, perhaps, in Blackstone’s Commentaries on the Laws of England. But not in the First Amendment to the United States Constitution.

A‘s free speech clause enjoys existence and force independent of the First Amendment’s. In section 24, article I states, in these very terms, that “rights guaranteed by [the California] Constitution are not dependent on those guaranteed by the United States Constitution.” This statement extends to all such rights, including article I‘s right to freedom of speech. For the California Constitution is now, and has always been, a “document of independent force and effect particularly in the area of individual liberties.” Article I‘s free speech clause is at least as broad as the First Amendment’s, and its right to freedom of speech is at least as great. Thus, under article I‘s free speech clause, as under the First Amendment’s, “speech” includes written expression as well as spoken. Also, article I‘s right to freedom of speech, like the First Amendment’s, does not restrict itself depending upon the identity or legal character of the speaker. That is because the right’s protection is afforded not only to one who speaks but also to those who listen. When the interests served by the speech at issue extend beyond those of the speaker to those of the listeners, the speaker, we think, whoever or whatever it may be, may be deemed to possess the right in question.

Article I‘s right to freedom of speech, like the First Amendment’s, is implicated in speaking itself. Because speech results from what a speaker chooses to say and what he chooses not to say, the right in question comprises both a right to speak freely and also a right to refrain from doing so at all, and is therefore put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.

Similarly, article I‘s right to freedom of speech, like the First Amendment’s, may also be implicated in the use of money. Because speech results, through money’s enabling, from what speech a speaker chooses to fund and what speech he chooses not to fund, the right in question comprises both a right to fund speech meaningfully and also a right to refrain from doing so altogether, and is therefore put at risk both by prohibiting a speaker from funding speech that he otherwise would fund and also by compelling him to fund speech that he otherwise would not fund.

As a general rule, however, article I‘s free speech clause and its right to freedom of speech are not only as broad and as great as the First Amendment’s, they are even “broader” and “greater.” A‘s free speech clause, unlike the First Amendment’s, specifies a “right” to freedom of speech explicitly and not merely by implication. But, otherwise, article I and the First Amendment are altogether different, because only article I, and not the First Amendment, affirmatively declares as a “right” that “every person may freely speak, write and publish his or her sentiments on all subjects”. Hence, article I itself grants a right to freedom of speech, and does not merely safeguard some such right against encroachment. Second, article I‘s right to freedom of speech, unlike the First Amendment’s, is unbounded in range. It runs against the world, including private parties as well as governmental actors. Third, article I‘s right to freedom of speech, unlike the First Amendment’s, is “unlimited” in scope. the right in question protects such speech-surely so in the form of truthful and nonmisleading messages about lawful products and services, the kind with which we are here concerned.

That article I‘s right to freedom of speech protects commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services, is implied through the specific language of the free speech clause in its precise setting. In California itself in 1849, the prevailing political, legal, and social culture was that of Jacksonian democracy. Jacksonian democracy was animated by “ideals of equality and open opportunity.” Those ideals worked themselves out in a “liberal, market-oriented, economic individualism.” What such individualism presupposed, and produced, was wide and unrestrained speech about economic matters generally, including, obviously, commercial affairs. Remember the year-1849. “After the discovery of gold in 1848,” “California attracted” a “rush of humanity.” These men — for they were largely men – were “essentially individualistic, greedy, and acquisitive gold-seekers.” It was such who framed the original California Constitution, including article I‘s free speech clause.

[At this point, Justice Most entered into a detailed review of the United States Supreme Court’s commercial-speech decisions, concluding that “The soundness of the Glickman majority’s analysis is open to serious question. In its own terms, the Glickman majority’s analysis lacks persuasiveness. Its legal component is driven not so much by principled reasoning as by ad hoc distinguishing.” He nevertheless held that, flawed though it was, Glickman compelled the conclusion that plaintiff had no rights under the First Amendment of the United States Constitution.]

The Secretary of Food and Agriculture argues, in reliance on People v. Teresinski (1982) 30 Cal.3d 822 (hereafter sometimes Teresinski), that there are “no reasons … to justify rejecting” the Glickman majority’s construction of the First Amendment’s free speech clause as our construction of article I’ s. In Teresinski, the presence of all four of the following facts counseled against rejection of a decision of the United States Supreme Court there considered: First, “nothing in the language or history of the California” constitutional provision in question “suggested that the issue before us should be resolved differently than under” the analogous federal constitutional “provision.” Second, the decision in question “did not overrule past precedent or limit previously established rights under” the United States Constitution. Third, the decision “was unanimous, and had not inspired extensive criticism.” Fourth, the decision, “if followed by the courts of this state, would not overturn established California doctrine affording greater rights” in the particular area. Here, by contrast, the absence of at least two of these four facts counsels in favor of rejection of the Glickman majority’s analysis. [Justice Mosk’s discussion of the Teresinski factors is omitted.]

The second question that we address is, Does the California Plum Marketing Program, issued by the California Secretary of Food and Agriculture pursuant to the CMA, implicate Gerawan’s right to freedom of speech under the free speech clause of article I of the California Constitution by compelling funding of generic advertising?

The answer that we give is, Yes.

At the threshold, we note under article I’s free speech clause what we noted under the First Amendment’s. Although a corporation, Gerawan may at least be deemed to possess an article I right to freedom of speech, whether or not it does so strictly speaking.

Article I’s right to freedom of speech, without more, would not allow compelling one who engages in commercial speech to say through advertising what he otherwise would not say, when his message is about a lawful product or service and is not otherwise false or misleading

We must, and do, reject the Glickman majority’s construction of the First Amendment’s free speech clause as our construction of article I‘s. As stated, the Glickman majority’s analysis results from, and results in, the proposition that the First Amendment’s right to freedom of speech does not protect commercial speech against compelled funding. Any such proposition is simply untenable with respect to article I‘ s.

We conclude that we must vacate the judgment of the Court of Appeal, and remand the cause to that court for further proceedings not inconsistent with this opinion.

 

Pines v. Tomson (1984), 160 Cal.App.3d 370

Pines v. Tomson (1984), 160 Cal.App.3d 370, 206 Cal.Rptr. 866

 

[From the Summary preceding the opinion:] In an action by two Jewish businessmen and a Jewish civic organization formed to combat prejudice (the latter acting as a private attorney general), brought against publishers of a “Christian Yellow Pages” that limited advertisements to those placed by persons making affirmations that they were born-again Christians, the trial court found that the publishers’ discriminatory conduct on the basis of religion violated the Unruh Civil Rights Act. [The Superior Court] enjoined defendants from, first, requiring advertisers or listers in the Christian yellow pages to affirm that they were born-again Christians; second, from publishing in the Christian yellow pages any concept statement or editorial policy; and third, from publishing advertisements or material in the Christian yellow pages that required identification of the advertiser’s or lister’s religious affiliation. [The Court of Appeals here held that:] the second part of the injunction violated the free speech rights guaranteed the publishers by both the state and the federal Constitutions. [This excerpt contains only that part of the opinion that pertains to the speech provisions of the California Constitution (Art. I, § 2). It omits the remainder of the opinion, which deals with federal First Amendment issues of speech and religion.]

Paragraph 2 violates the protection of “sentiments” guaranteed by article I section 2, subdivision (a) of the California Constitution.

Article I section 2, subdivision (a) of the California Constitution is more definitive and inclusive than its federal counterpart. The section guarantees: “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.” (Italics added.)

Analysis of the section shows that it is comprised of three subparts: (1) an affirmation that all persons may freely speak, write and publish their “sentiments,” (2) a provision allowing for liability once that right is abused and (3) a prohibition against laws which infringe freedom of speech or the press. Only the third subpart is paralleled, more or less, in the federal Constitution (“Congress shall make no law … abridging the freedom of speech, or of the press …”). The first subpart of the section, “every person may freely speak, write and publish his or her sentiments on all subjects,” is qualified only by the second subpart which provides for responsibility after the fact if that right is abused. Although the section does not use the term “prior restraint,” the plain meaning of the first sentence of article I section 2, subdivision (a) is that “sentiments” are protected from any prepublication sanctions, i.e., from all prior restraints.

The California Supreme Court’s seminal opinion on the meaning of article I, section 2, subdivision (a) was rendered in 1896 in Dailey v. Superior Court.

In Wilson v. Superior Court, a decision which interpreted federal constitutional law, the Supreme Court stated that its interpretation of section 2, subdivision (a) of article I of the California Constitution “is exemplified” by Dailey and referred to that “protective provision” as one “more definitive and inclusive than the First Amendment.”

What then is the scope of the guarantee of the first sentence of article I, section 2, subdivision (a), which protects “sentiments” from prepublication sanctions? Its scope must depend on the meaning of the term “sentiments.” In Webster’s New World Dictionary (1976), “sentiment” is defined as “1. a complex combination of feelings and opinions; 2. an opinion, etc., often colored by emotion; 3. appeal to the emotions, or sensitivity to this; 4. maudlin emotion.” In Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, the [California] Supreme Court observed: “It is noteworthy that the California Constitution provides that ‘[e]very person may freely speak, write and publish his or her sentiments on all subjects ….’ (Art. I, §2.) As Webster confirms, ‘sentiments’ encompasses not only thoughts but the attendant emotions. Thus, it is plain that the “sentiments” to which article I, section 2, subdivision (a) refers include statements of editorial thought, emotion and opinion. Therefore, consistent with that provision, in this state statements of editorial opinion may not be restrained prior to publication.

Here, however, the purpose and effect of paragraph 2 of the trial court’s injunction is precisely that — to restrain appellants’ statements of editorial opinion — as it forbids appellants from stating they have a religious purpose in publishing the CYP, from expressing their views as to what kind of treatment consumers should expect from “Christian business people,” and from offering their editorial opinion on the question “’Who is a Christian?”’ Therefore, paragraph 2 of the trial court’s order cannot be reconciled with the plain meaning of article I, section 2, subdivision (a) of the California Constitution and for that reason it must be stricken

Conclusion

Oliver Wendell Holmes once remarked, “I long have said that there is no such thing as a hard case. I am frightened weekly, but always when you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.”

We have been charged in this case with the burden of judicially distinguishing between difficult and opposing views in a field of substantial uncertainty. Our perceived duty has been to narrow the exercise of purported power of one clashing adversary over the rights of an opponent. In that light, we have cautiously reviewed any attempted encroachment over another’s will or desire.

As the end of the law is peace, we have sought in our resolution to extend a saving hand to this occasion’s call by allowing no preferred treatment nor unnecessary relegation of any party to a deferent position.

We have advanced an interpretation of fact and law which results in a standard of what is deemed reasonable and right and fashions a path for greater harmony in the human community.

While we cannot, except by case-by-case analysis, dictate the morals of the marketplace, we can pronounce that acts of discrimination, practiced ingeniously or ingenuously, cannot stand in this hallowed hall where the injured apply for justice.

We wish to stress that the reversal of paragraphs 2 and 3 of the trial court’s injunction will not strip the judgment of its vitality. Nothing in the doctrine of prior restraints prohibits legal sanctions from being taken against those who violate a lawful court order. Paragraph 1 of the injunction, which prohibits appellants’ acts of discrimination on the basis of religion, will sufficiently protect respondents’ First Amendment rights.

 

People v. Borrelli (2000), 77 Cal.App.4th 703

People v. Borrelli (2000), 77 Cal.App.4th 703, 91 Cal.Rptr.2d 851

[The California anti-stalking statue provided (as of 1996):

“(a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking….

“(e) For the purposes of this section, ‘harasses’ means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.

“(f) For purposes of this section, ‘course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’

“(g) For purposes of this section, ‘credible threat’ means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat….”

Appellant Borrelli was convicted under it after threatening and harassing his estranged wife.]

ARDAIZ, P.J.

While these guarantees [U.S. Constitution, First Amendment and California Constitution Art. l I sec. 2(a)] are stated in broad terms, “the right to free speech is not absolute.” As our high court has acknowledged:

“Many crimes can consist solely of spoken words, such as soliciting a bribe, perjury, or making a terrorist threat. The state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, “ ‘communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs…. … A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity. [citing (Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121 (1999)]

The goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, “communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs….” As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. Nonetheless, statutes criminalizing threats must be narrowly directed against only those threats that truly pose a danger to society. When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection.

Appellant’s arguments reflect his misunderstanding of the stalking offense and the rights at stake. In order to be penalized under section 646.9, subdivision (a), the defendant must willfully engage in the prohibited conduct with the intention of inflicting substantial emotional distress on the person to whom the comments were directed in violation of the latter’s constitutionally guaranteed rights to pursue safety, happiness, and privacy as guaranteed by our state and federal Constitutions; the threats must be made with the apparent ability to carry them out so as to cause the person who is the target of the threat to reasonably fear for his or her safety; and the victim must actually suffer substantial emotional distress. Thus, contrary to appellant’s characterization of the statute, someone who is merely “blowing off steam,” without more, could not be found to have violated the statute. Also contrary to his arguments, comments regulated by section 646.9 are not made in a manner in which no one will be hurt. As noted, the victim must actually suffer substantial emotional distress. This type of threat truly poses a danger to society and is therefore a proper subject for regulation.

Section 646.9 does not regulate the content of speech insomuch as the manner in which the communication is made. While the right to free speech guarantees a powerful right to express oneself, it does not include the right to repeatedly invade another person’s constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress. The aim and effect of this statute are not to suppress speech, but to protect individuals in the exercise and enjoyment of their constitutional rights from invasive, oppressive conduct that infringes on those rights.

In sum, section 646.9 does not infringe on the free speech rights guaranteed by the Constitution. The judgment is affirmed.

 

Joseph R. Grodin, “Freedom of Expression under the California Constitution”

Joseph R. Grodin, “Freedom of Expression under the California Constitution,” 6 Cal. Legal Hist. 187 (2011)

Most of us, when we want to refer to constitutional protection for expressive activity, refer to our “First Amendment rights.” But when delegates to the first California constitutional convention gathered in Monterey in 1849 to draft a Declaration of Rights, the First Amendment was not a subject of discussion. Not only had the First Amendment never been interpreted by the U.S. Supreme Court, at that time the federal Bill of Rights had no application to the states.1 Instead, in drafting what became the first article of the Constitution, the delegates chose as models primarily the constitutions of New York and Iowa; and while most state constitutions had similar provisions relating to freedom of speech, it was the New York Constitution of 1846 that provided the text

It was to be expected, notwithstanding the independent origins of the free speech and assembly provisions of the California Constitution, that their interpretation would be influenced over time by the First Amendment and its interpretation by the U.S. Supreme Court. This article’s principal undertaking, however, is a description of the ways in which interpretation by California courts of the state constitutional provisions has given rise to a somewhat different jurisprudence, providing protections for expressive activity and association beyond the First Amendment. Toward the end of the article, I will discuss the justification for and methodology of such a distinctive state approach.

[Discussion of pre-1930 cases omitted.]

III. THE CALIFORNIA CONSTITUTION IN HIDIN

For several decades after Stromberg [v. California, 283 U.S. 359 (1931)], the free speech provision of the California Constitution seemed to go into hiding. This was not because there were no free speech cases that reached the California courts. Many did. But typically the courts would discuss the cases in terms of First Amendment law without mentioning the California Constitution at all. Or if they did mention it, they relegated it to a secondary position without independent analysis, finding the challenged governmental action to be valid or invalid on the basis of the First Amendment and then adding something like “and the result is the same under the California Constitution.”

There are a number of possible explanations. During this period the U.S. Supreme Court was developing a substantial body of First Amendment jurisprudence, and lawyers invoking a constitutional claim against governmental action restrictive of speech turned naturally to those precedents. Even when lawyers did put forth a claim based on the state Constitution, it was easier for courts to rely on First Amendment analysis than to engage in the development of an independent state jurisprudence. All this was illogical, as Hans Linde of Oregon pointed out in an influential article, arguing that a state could not be said to deprive a person of due process under the federal Constitution through action that was invalid under the state’s own constitution. It was, moreover, contrary to the principle of judicial restraint reflected in the doctrine that a court should not consider the constitutional validity of a statute if through reasonable interpretation the constitutional question could be avoided. And, reliance upon the federal Constitution to invalidate state action could prove to be embarrassing if the U.S. Supreme Court did not agree. But as Holmes taught us, the life of the law is not necessarily logic.

Perspectives on the relationship between the state and federal constitutions in areas other than free speech began to change in the 1950s, when the California Supreme Court, at a time when federal law did not require exclusion of illegally obtained evidence, decided in People v. Cahan that evidence obtained in violation of the state Constitution was inadmissible in a criminal proceeding. The trend picked up in 1972, when the Court held California’s death penalty statute unconstitutional in People v. Anderson. In the same year, the state Constitution was amended to add an explicit right of privacy as well as an explicit statement of state constitutional independence: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” Finally, in 1979, the Court broke with federal precedent in the area of free speech.

IV. EXPRESSIVE ACTIVITY ON PRIVATE PROPERTY: PRUNEYARD AND ITS PROGENY

[Discussion of Pruneyard and related cases omitted.  See infra VIII.D.]

Questions remained, however, as to the scope of the Pruneyard principle under California law, and answering those questions was complicated by the fact that the Court’s opinion in Pruneyard is unclear as to the basis for its holding. Did the Court mean to say that because of the difference in language between the First Amendment (“Congress shall make no law”) and the language of the California Constitution (“Every person may freely speak”), there is no “state action” requirement for application of article I, section 2? Or did it mean to say that there is a state action requirement, but it is more easily met than under federal law? If, as the Court said in Pruneyard, that case would not necessarily apply to a homeowner or a modest retail establishment, was that because there would be no “state action,” or for some other reason, perhaps because the public importance of allowing free communication on the premises was outweighed by the owner’s interests in restricting access? Would the answers to these questions depend upon who was speaking to whom? Or would that inquiry be precluded by the First Amendment as content based? And finally, where the Pruneyard principle did apply, would the reasonableness of time, place, and manner restrictions be assessed by the same standards that would apply in a public forum, or, because private property interests are implicated, would different standards apply?

V. EXPRESSIVE ACTIVITY ON PUBLIC PROPERTY: THE FORUM CONTROVERS

For decades the U.S. Supreme Court has attempted to define the circumstances under which the government must yield its property to expressive activities. The results, in terms of coherence and clarity, leave a good deal to be desired. In 1983, in Perry Education Ass’n v. Perry Local Educators’ Ass’n, the U.S. Supreme Court articulated a tripartite categorical approach: there is the “quintessential public forum,” public property which has by tradition been open to expressive activity, such as streets and parks; the “designated public forum,” public property which the state has voluntarily opened for such use; and the “nonpublic forum,” all other public property. In the quintessential public forum, speech content regulations are subject to strict scrutiny, and any time, place, and manner regulations must be reasonable, must be “narrowly tailored to serve a significant government interest,” and leave open “ample alternative channels” for speech. According to the Court in Perry, the designated public forum is subject to the same restrictions, except that the government is free to withdraw the designation. In the nonpublic forum, speech may be prohibited or restricted so long as the regulation is reasonable and viewpoint neutral.

Or so it is said. In applying public forum analysis, however, the U.S. Supreme Court has encountered considerable difficulty, and has displayed considerable internal disagreement, over the criteria for determining whether government must make particular property available for expressive activity, what constitutes content neutrality, and what sorts of time, place, and manner restrictions are permissible. The Court’s pattern of analysis has provoked a good deal of criticism from academics, and from some lower courts as well. From time to time there have been signs of movement away from a categorical, and toward a more functional approach, deemphasizing “tradition” and “designation” in favor of an analysis that takes into account both governmental interests and the interests in free expression, but the Court has adhered to its tripartite analysis.

The Court’s distinctions of prior Court of Appeal opinions, in place of their outright rejection, led to uncertainty as to the status of public forum analysis under the California Constitution. That uncertainty has remained. In International Society of Krishna Consciousness v. City of Los Angeles (ISKCON), an organization wishing to solicit immediate donation of funds in the Los Angeles Airport brought suit in federal court to challenge the constitutional validity of a city ordinance prohibiting such solicitation. Against the background of a U.S. Supreme Court decision that airports are not public fora under the First Amendment, the Ninth Circuit Court of Appeal asked the California Supreme Court to answer the question under the state Constitution. Accepting the certification, the California Court split three ways. One justice (Kennard) expressed the view that airports are public for a under the state Constitution, while three justices (Justice Chin, joined by Justices Corrigan and Baxter) ex pressed the contrary view. The remaining three justices (Justice Moreno, joined by Justice Werdegar and Chief Justice George) found it unnecessary to reach that question, deciding instead that even if airports are public fora under the state Constitution, the ordinance was not content based, and that it constituted a reasonable time, place, and manner regulation. All seven justices agreed with this conclusion.

It seems clear that the California Supreme Court is not tethered to federal law when it comes to expression on public property. In Bailey v. Loggins, for example, it found, beyond federal precedent, that a prison newspaper constituted a limited public forum subject to constitutional protection, so that prison authorities in deciding what could be printed must exercise their authority “even-handedly and with sensitivity to the values protected by the First Amendment and corresponding California constitutional and statutory provisions.” Yet, partly through studious avoidance on the part of the Supreme Court, it remains unclear to what extent California has a different constitutional approach to expression on public property, and the uncertainty has been amplified by changes in the composition of the Court. The arguments in the opposing opinions of Justices Kennard and Chin in ISKCON turn in part upon differing interpretations of prior opinions, but more basically reflect differing views as to the proper balance between allowing the broadest feasible opportunity for free expression versus competing governmental interests – and to some extent between the desirability of a flexible approach as contrasted with the advantages of clear rules.

IX. ARTICLE I, SECTION 3(B): PUBLIC RIGHT OF ACCESS TO INFORMATION

The argument has often been made that the rights protected by the First Amendment should include a public right of access to government places and papers, as a means of enhancing the values of self-governance, which it is one of the functions of the First Amendment to preserve. The U.S. Supreme Court recognized a limited right of access under the First Amendment to court proceedings, but has otherwise proved unwilling to expand that right, for example to prisons.

Many states, however, including California, have imposed upon government an obligation to allow broad public access to meetings and papers through statutes. In 2004 California voters went further, approving a legislatively proposed constitutional amendment, Proposition on that year’s ballot, which establishes a state constitutional right of access “to information concerning the conduct of the people’s business,” including “the meetings of public bodies and the writings of public officials and agencies.”‘

It is unclear to what extent Proposition 59 changed previous law. The ballot argument in support of the proposition asserts that existing disclosure laws “have been eroded by special interest legislation, by courts putting the burden on the public to justify disclosure, and by government officials who want to avoid scrutiny and keep secrets.”‘ The Legislative Analyst’s summary which accompanied the measure states that “[a]s a result, a government entity would have to demonstrate to a somewhat greater extent than under current law why information requested by the public should be kept private. Over time, this change could result in additional government documents being available to the public.” Thus far, the few appellate court opinions that have considered Proposition 59 have not provided much enlightenment.

 X. SOME THOUGHTS ON METHODOLOGY

 While there is a growing recognition on the part of judges and lawyers, and for that matter the public generally, that state constitutions have an important role in the protection of what we call “constitutional rights,” questions remain as to the methodology for interpreting the relevant constitutional provisions – in particular the role to be played, if any, by U.S. Supreme Court decisions under the federal Constitution. Despite the fact that state and federal constitutional protection for civil rights and liberties have different historical roots – often, but not always, reflected in differences in language – it has often proved tempting for a state court to rely heavily on federal precedent, especially when there is a dearth of state authority. In recent years California courts, in the context of free speech, have been relatively resistant to that temptation.

In 1982, in People v. Teresinski, the California Supreme Court, reiterating the dogma that decisions of the U.S. Supreme Court are entitled to “respectful consideration… and ought to be followed unless persuasive reasons are presented for taking a different course,” set out a list of factors, considered in prior cases, relevant to that determination. These include whether there are differences in “language or history”; whether the most recent opinion of the high court represents a limitation on rights established by earlier precedent “in a manner inconsistent with the spirit of the earlier opinion”; the “vigor” of any dissenting opinion or “incisive academic criticism”; and whether adherence to the federal precedent would overturn established California doctrine affording greater rights. Teresinski was an illegal search case, and in free speech cases what have become known as the “Teresinksi factors” are seldom mentioned.

 Certainly the Teresinski factors are broad and vague enough to allow for considerable flexibility in deciding state constitutional issues, but the question remains, and is seldom asked, why federal precedents should be entitled to any deference at all, beyond respectful consideration of the reasoning which they contain. Perhaps an argument can be constructed on the basis of uniformity: people, especially those who are not lawyers, may find it difficult to understand why “constitutional rights” should vary from one state to another. Our commitment to the idea that as a nation we are joined by common concepts of rights that are in some meaningful sense “fundamental” is arguably weakened by such diversity. In some contexts there may be some value in uniformity per se, as a means, for example, of avoiding confusion on the part of those whose activities take them across state lines, though that problem arises equally in situations where there are differences in state statutory or common law. Finally, it may be simpler and less controversial, when there are clear federal precedents pointing to unconstitutionality, for a state court to rely on those precedents rather than break new state constitutional ground. But whether these arguable advantages outweigh the disadvantages of deference – including the constrictions on the development of state constitutional jurisprudence and the risk of changes in federal law, not to mention the awkwardness which results when the high court disagrees – is highly questionable.

 

Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 (1983)

Justice WHITE delivered the opinion of the Court.

Perry Education Association is the duly elected exclusive bargaining representative for the teachers of the Metropolitan School District of Perry Township, Ind. A collective-bargaining agreement with the Board of Education provided that Perry Education Association, but no other union, would have access to the interschool mail system and teacher mailboxes in the Perry Township schools. The issue in this case is whether the denial of similar access to the Perry Local Educators’ Association, a rival teacher group, violates the First and Fourteenth Amendments.

The primary question presented is whether the First Amendment, applicable to the states by virtue of the Fourteenth Amendment, is violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication, while such access is denied to a rival union. This is not to say that the First Amendment requires equivalent access to all parts of a school building in which some form of communicative activity occurs. The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication

A second category consists of public property which the state has opened for use by the public as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.

Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. As we have stated on several occasions, “the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.

Because the school mail system is not a public forum, the School District had no “constitutional obligation per se to let any organization use the school mail boxes.” In the Court of Appeals’ view, however, the access policy adopted by the Perry schools favors a particular viewpoint, that of the PEA, on labor relations, and consequently must be strictly scrutinized regardless of whether a public forum is involved. There is, however, no indication that the school board intended to discourage one viewpoint and advance another. We believe it is more accurate to characterize the access policy as based on the status of the respective unions rather than their views. Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves.

When speakers and subjects are similarly situated, the state may not pick and choose. Conversely on government property that has not been made a public forum, not all speech is equally situated, and the state may draw distinctions which relate to the special purpose for which the property is used. As we have explained above, for a school mail facility, the difference in status between the exclusive bargaining representative and its rival is such a distinction.

 

In re Hoffman (1967), 67 Cal.2d 845

In re Hoffman (1967), 67 Cal.2d 845, 64 Cal.Rptr. 97

TRAYNOR, Chief Justice.

Petitioners were convicted in the Los Angeles Municipal Court of violating a city ordinance1 restricting the right to be in a railroad station. Petitioners seek a writ of habeas corpus on the ground that the ordinance unconstitutionally abridges their right of free speech

Union Station in Los Angeles is owned by three railroad companies, the Southern Pacific, the Union Pacific, and the Santa Fe. It is a spacious area open to the community as a center for rail transportation. It also houses a restaurant, a snack bar, a cocktail lounge, and a magazine stand. Not only passengers but friends and relatives of passengers may freely enter and use the facilities of the waiting room. Entry is also free to those who seek food or drink or magazines and newspapers. There are signs posted around the station stating: ‘PRIVATE PROPERTY—PERMISSION TO PASS OVER REVOCABLE AT ANY TIME.’

About 5 o’clock in the afternoon of September 5, 1966, a group of about 15 persons, including petitioners, entered the station to distribute leaflets protesting United States action in Vietnam and the impending court martial of three soldiers at Fort Hood, Texas, who had refused to go to Vietnam. They hoped to communicate with soldiers who would be in the station on their return to Camp Pendleton after the Labor Day weekend. They went to the station solely to distribute leaflets and discuss their position with persons in the area. They circulated about the main entrance, the lobby, and the south patio of the station. The city concedes that they did not impede the flow of traffic to or from the station or interfere with the purchase or sale of tickets or the conduct of business by the restaurant, bar, or magazine and newspaper stand located on the premises.

The ordinance defines the law of trespass applicable to this situation. Trespass laws punish presence on property unauthorized by the possessor thereof and conclusively presume injury from that presence. The city’s contention is essentially that the railroads have consented to open their property to the general public for a limited and specific purpose only, namely, for the use of the transportation facilities offered, that petitioners admittedly came onto the property for other purposes, and that the railroads may therefore demand their removal and arrest and prosecution for trespass.

The primary uses of municipal property can be amply protected by ordinances that prohibit activities that interfere with those uses. Similarly, the primary uses of railway stations can be amply protected by ordinances prohibiting activities that interfere with those uses. In neither case can First Amendment activities be prohibited solely because the property involved is not maintained primarily as a forum for such activities.

The test is not whether petitioners’ use of the station was a railway use but whether it interfered with that use. No interest of the city in the functioning of the station as a transportation terminal was infringed. Petitioners’ conduct was also unassailable under statutes aimed at protecting the city’s interest in preserving good order, cleanliness, public health, and safety. Nor did their presence violate any legitimate interest of the railroads, their patrons, or employees. It invaded no right of privacy. In this respect, a railway station is like a public street or park. Noise and commotion are characteristic of the normal operation of a railway station. The railroads seek, neither privacy within nor exclusive possession of their station. They therefore cannot invoke the law of trespass against petitioners to protect those interests

The second part of the ordinance completely prohibits protected activities although a narrower measure would fully achieve the intended ends and at the same time preserve an effective place for the dissemination of ideas. Because of the overbreadth of coverage in this ordinance, the language prohibiting presence in a terminal longer than reasonably necessary to conduct business with a carrier is unconstitutional.

Since the second part of the ordinance is broader than constitutionally permissible, petitioners’ convictions cannot stand under any theory, for there is no other evidence that they were present in Union Station for an ‘unlawful’ purpose.

The writ is granted and the petitioners are discharged from custody.

 

U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984), 154 Cal. App.3d 1157

U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984). 154 Cal.App.3d 1157, 201 Cal.Rptr. 837

WHITE, P. J.

This is an appeal by the Lawrence Livermore Laboratory and certain officials of the Laboratory and of the University of California, from an order granting a preliminary injunction which requires the Laboratory to allow the U.C. Nuclear Weapons Labs Conversion Project to use the Laboratory’s Visitors Center to display literature and show slideshows, and to apply to use a certain auditorium to present programs. The Project is an unincorporated association which opposes the work of the Lawrence Livermore Laboratory in the area of developing nuclear weapons and nuclear power. The Laboratory is one of two places in the country where nuclear weapons are developed, and it also does non-weapons-related research.

Keeping in mind that the free speech and petitioning provision in the California Constitution does not mirror the First Amendment either in form or content, we draw on both provisions for the analysis required in this state. As our Supreme Court has observed, for state constitutional analysis ‘federal principles are relevant but not conclusive so long as federal rights are protected.’

The right of free speech in this state is a vigorous one, largely because of the obligation and right of our citizens to be actively involved in government through the processes of initiative, referendum and recall which distinguish our state constitutional system. These mechanisms for direct popular government have been described as ‘a basic process in the state’s constitutional scheme ….‘ It is appropriate in these circumstances to evaluate the free speech claim in the instant case as a matter of state constitutional law.

On the dispute over ‘public forum‘ analysis, we agree with respondents that this concept is a continuum, with public streets and parks at one end and government institutions like hospitals and prisons at the other.

This court must consider whether the Conversion Project’s distribution of literature and showing of slides about government policies on nuclear weapons and energy is compatible with the ‘intended purpose‘ of the Visitors Center. This requires a careful analysis of just how deep ‘the basis of subject matter‘ criterion may delve. If the Center’s intended purpose is to present only the official government ‘line,‘ and to persuade the public of its correctness, and to preclude informed debate — then any literature critical of government policy would be ‘incompatible.‘ But if the Center’s purpose is merely to inform the public about the work of the Laboratory, then it is difficult to see how dissemination of literature critical of the government’s nuclear policy (and the Laboratory’s role in that policy) could interfere with that purpose. Is it constitutionally permissible in this state to require ideological compatibility? Once again this raises concerns about what the appropriate balance should be, when the government itself is the speaker. This issue of ‘government speech‘ is critical in our state, which recognizes ‘the public’s interest in maximizing the availability of effective free speech forums.‘ This court has therefore adopted the ‘basic incompatibility‘ test.

In the case at bar, the Visitors Center is an enclosed place owned and operated by the government and open to the public at large. While it is obviously distinguishable from a street or park, it is just as clearly distinguishable from a hospital or prison. The primary purpose of the Center is to disseminate information. Visitors are allowed to roam freely around the Center, to pick up literature, study posters and other displays, and presumably to discuss all they are exposed to. This environment falls somewhere in the middle of the continuum, in the category Lawrence Tribe describes as a ‘semi-public forum.‘

Appellants [Laboratory] argue vigorously that the government’s use of the Visitors Center to communicate with the public does not — and should not — create a public forum. They urge the principle that the government has a ‘right to choose the message it wishes to communicate in facilities which it has set aside for that purpose (whether the facility be a museum, a visitors’ center, an opera house, or a theater) ….‘ The idea that because the government owns this property it alone has the right to communicate with the public there raises serious concerns. Thus, we conclude that the Project’s right to have access to the Visitors Center as ordered by the court below is protected by article I, section 2 of the California Constitution as a use compatible with the purpose and function of the Visitors Center.

The dissent contemplates that in the future courts may decide that visitors’ centers in places such as Muir Woods, Yosemite Park, or even museums must allow literature or informational displays to communicate views that dissent from government policies. Far from sharing our dissenting colleague’s alarm at such a prospect, we believe that it is just such a robust exchange of ideas that the free speech provisions of the Constitution were designed to protect and promote.

Conclusion

The trial court did not abuse its discretion in issuing the preliminary injunction. The particular requirements of the order were not addressed by the parties, and they appear reasonable in light of the interests at stake. Denial of the injunction would prevent the free exercise of constitutionally protected rights by respondents, which must always be considered a serious harm. Granting the injunction will merely require the Laboratory to accommodate the Project’s expressive activities in the Visitors Center, and to exercise its control over access to the Building 123 auditorium in a constitutional manner. While these requirements may cause some administrative inconvenience, certainly this is not a harm which outweighs the abridgement of a constitutional right.

The judgment of the superior court is affirmed.

 

Prisoners’ Union v. Dept. of Corrections (1982), 135 Cal.App.3d 930

Prisoners Union v. Department of Corrections (1982), 135 Cal. App. 3d 930, 185 Cal. Rptr. 634

Grodin, J.:

Appellant Prisoners Union is a nonprofit organization concerned with the welfare of prisoners and their families. By this action for declaratory and injunctive relief, it and certain of its members challenge the power of state prison officials to ban it from distributing informational literature to visitors of inmates in a public parking lot located on prison property but outside prison walls. We hold that such activity is protected by the federal and state Constitutions, and that it cannot be banned absent a showing that such activity would pose an overriding threat to prison security, or to another similar state interest. Since we find no such showing on this record, we conclude that appellants are entitled to the relief which they seek.

[After a review of federal precedents dealing with public forums, Judge Grodin wrote:] California authorities uphold the right of expression in public places on the basis of principles which are at least as protective of speech as those we have considered, and in some respects more protective. To the extent that greater protection is afforded by California authorities, it is justified by article I, section [2] of the California Constitution, “[a] protective provision more definitive and inclusive than the First Amendment.”

In In re Hoffman, 67 Cal.2d 845 (1967), the California Supreme Court upheld the right of Vietnam war protestors to distribute antiwar literature at a privately owned railway station. The court observed: “The primary uses of . . . railway stations can be amply protected by ordinances prohibiting activities that interfere with those uses. In neither case can First Amendment activities be prohibited solely because the property involved is not maintained primarily as a forum for such activities . . . . [The] test is not whether petitioners’ use of the station was a railway use but whether it interfered with that use.” Since there was no showing of interference, that court found it “immaterial that another forum, equally effective, may have been available to petitioners,” so that there was “no need to balance, and we need not review those instances where the narrowness of the issue restricts the appropriate audience, creating a compelling need for a particular forum that may be upheld against a very slight competing interest.

II.

In reviewing respondents’ policy, the trial court appears to have accepted respondents’ all-or-nothing approach: the prison parking lot cannot be termed a “public forum” because, if it were, there would be no way to protect the prison’s security interests from the flood of potential users. This reasoning is reflected in the court’s finding that “to allow members of the public, whether it be the prisoners’ union or any other group, to distribute literature as requested by the Prisoners’ Union herein, would create a ‘public forum’ on prison grounds and substantially increase security problems at the prison.” As the court observed in its notice of intended decision, “one card table inevitably leads to another.”

This approach is not in accord with the constitutional principles we have discussed. Leaving to one side the special interest the Prisoners Union has in utilizing this particular location as a forum, and accepting for purposes of analysis the somewhat dubious hypothesis that if the Prisoners’ Union is allowed to distribute literature in this rather remote location all manner of organizations will seek similar privileges, it does not follow that such privileges must be granted without limitation. On the contrary, it is quite clear that prison authorities would be entitled to impose reasonable restrictions as to time, place, and manner of use; and these might well include a rationing of use on some content-neutral basis as required by security or other legitimate governmental interests. Indeed, the Prisoners Union anticipated such limitations in its permission request, and offered to abide by them.

Even as to communications among inmates within a prison, regulations must be drafted “no more broadly than they need be to meet the perceived threat.” The trial court did not find that the prison’s legitimate security interests would be threatened by appropriately limited use of the parking lot by the Prisoners Union or similar organizations; nor would the record support such a finding.

Only three proffered reasons for the policy at issue appear in the record. Two of these relate peculiarly to the Prisoners Union, and thus do not support the broad ban on distribution by all nonemployee organizations. These are (1) that visitors raise with inmates the issues discussed in appellants’ leaflets, and this in turn may develop unrest within the prison; and (2) that the activities proposed may be a “front” for organizing within the prison. No evidence was offered in support of either conjecture, nor did prison authorities suggest any reason for distinguishing in these respects between the activities proposed by appellants and other activities which are permitted. It has been held that institutional security interests were not shown to justify a prohibition on the wearing of union buttons by prisoners, in the absence of evidence of actual disruption or specific reasons for predicting disruption, nor to justify a prohibition of correspondence between inmates and a paroled Prisoners Union official, notwithstanding assertions by prison authorities that such correspondence might create a particularized risk. The Prisoners Union in this case proposed to distribute literature only to visitors leaving the prison. If there is a risk to prison security in such activity, arising out of the possibility that the visitors will talk to inmates about disruptive matters at some later date, and if that risk is different from and somehow greater than other permitted forms of communication, the record does not so reflect.

The remaining reason offered by respondents in support of the ban was that the parking lot is a congested area, in which contraband such as weapons and narcotics are found. Precisely how the limited activity proposed by appellants would add to problems of contraband was not indicated, nor was there any showing that problems of congestion were such as to pose risks to security or other institutional interests beyond adequate control through regulations as to time, place, and manner.

Since there was no substantial evidence of interference, inquiry as to alternative means of communication was not required. It would appear, however, that the parking lot of a prison is, for purposes of the communications proposed, a peculiarly appropriate forum. The relevant audience is gathered there, or not at all. What the trial court meant by its findings that the Prisoners Union had available “off -grounds distribution” is not clear, but the record does establish unequivocally that when members of the union attempted to distribute literature at the gate to prison property, they were ordered by sheriff’s deputies to leave because their activities created a traffic hazard. The trial court also found that the union could engage in “direct distribution to inmates,” presumably on the assumption that the inmates would then transmit the literature to relatives and friends. That is, however, a poor substitute for direct communication with the intended audience. The alternative of communication by mail is obviously more costly than personal distribution, and assumes the availability of names and addresses, an assumption not supported by evidence in the record. In sum, the trial court’s overall finding that “other reasonable means of distribution” were available to the union is dubious, at best.

We do not attempt here to decide what limitations might be placed upon the distribution of literature by the Prisoners Union or other organizations in the parking lot upon an adequate showing of governmental interest. We conclude only that neither the trial court’s findings nor the record establish a state interest sufficient to justify the absolute prohibition of expression contained in respondents’ policy. This conclusion is supported by the federal authorities we have discussed. It is mandated as well by California constitutional free speech principles which are even “‘more definitive and inclusive than the First Amendment.'”

The judgment is reversed, and the matter remanded to the trial court with directions to enter an injunction in accordance with the views expressed in this opinion.

 

Pruneyard: Speech on privately-owned property

Marsh v. Alabama, 326 U.S. 501 (1946)

Mr. Justice BLACK delivered the opinion of the Court.

In this case we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town’s management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center.

Appellant, a Jehovah’s Witness, came onto the sidewalk we have just described, stood near the post-office and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows: ‘This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.’ Appellant was warned that she could not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the state court with violating Title 14, Section 426 of the 1940 Alabama Code which makes it a crime to enter or remain on the premises of another after having been warned not to do so.

Had the title to Chickasaw belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company-town it would have been clear that appellant’s conviction must be reversed. Our question then narrows down to this: Can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town? For it is the state’s contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms.

We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a ‘business block’ in the town and a street and sidewalk on that business block. Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.

When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a State statute. Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand. The case is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)

Mr. Justice POWELL delivered the opinion of the Court.

The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills [protesting the draft and America’s involvement in the war in Vietnam] on Lloyd’s private property [a shopping mall] contrary to its wishes and contrary to a policy enforced against all handbilling.

In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that ‘(n)o person shall . . . be deprived of life, liberty, or property, without due process of law.’ There is the further proscription in the Fifth Amendment against the taking of ‘private property . . . for public use, without just compensation.’

Although accommodations between the values protected by these three Amendments are sometimes necessary, and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only. Even where public property is involved, the Court has recognized that it is not necessarily available for speaking, picketing, or other communicative activities.

Respondents contend, however, that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.

The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case where is no comparable assumption or exercise of municipal functions or power.

The Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens, must be respected and protected. The Framers of the Constitution certainly did not think these fundamental rights of a free society are incompatible with each other. There may be situations where accommodations between them, and the drawing of lines to assure due protection of both, are not easy. But on the facts presented in this case, the answer is clear.

We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. Accordingly, we reverse the judgment and remand the case to the Court of Appeals with directions to vacate the injunction.

 

Hudgens v. NLRB, 424 U.S. 507 (1976)

Mr. Justice STEWART delivered the opinion of the Court.

A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center [in reality, a large mall] were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act. The National Labor Relations Board concluded that it did, and the Court of Appeals for the Fifth Circuit agreed.

It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.

The reasoning of the Court’s opinion in Lloyd [Corp. v. Tanner] cannot be squared with the reasoning of the Court’s opinion in Logan Valley. It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case. Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley.

If the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co. We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.

For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.

Vacated and remanded.

 

Diamond v. Bland (1974), 11 Cal.3d 33

BURKE, J.

In 1970 this court decided the case of Diamond v. Bland, 3 Cal.3d 653 [91 Cal.Rptr. 501, 477 P.2d 733], in which we held that plaintiff was entitled to solicit signatures on an initiative petition and to distribute leaflets regarding the proposal at defendant’s shopping center. Two years later, the United States Supreme Court determined in Lloyd Corp. v. Tanner, that the owners of a shopping center in Oregon had the right to prohibit the distribution of political handbills unrelated to the operation of the shopping center. We conclude that Lloyd is indistinguishable from the instant case and, accordingly, that we must reappraise our Diamond decision in the light of the principles established in Lloyd.

Our prior holding in this case was based primarily upon our interpretation of the rationale of two cases of the United States Supreme Court, namely, Marsh v. Alabama, and Food Employees v. Logan Plaza. In Marsh, the court held that a member of a religious organization was constitutionally entitled to distribute religious literature on the streets of a company-owned town. In Logan it was decided that a shopping center could not prohibit union picketing of a business located within the center. In Lloyd Corp. v. Tanner, the United States Supreme Court declined to extend the rationale of Marsh and Logan to require the owner of a shopping center in Oregon to permit the respondents to distribute, on the premises of the shopping center, handbills regarding the draft and the Vietnam war.

In balancing the interests of the respondents in exercising their First Amendment rights against the property rights of the owners of the shopping center, the court in Lloyd concluded that the latter must prevail. The court stated that, in view of the availability to respondents of other public forums for the distribution and dissemination of their ideas, “It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances *335 where adequate alternative avenues of communication exist.”

Lloyd’s rationale is controlling here. We must conclude that defendants’ private property interests outweigh plaintiffs’ own interests in exercising First Amendment rights in the manner sought herein.

The judgment of the trial court dissolving the injunction previously issued in this case is affirmed.

MOSK, J.

I dissent.

On December 16, 1970, this court rendered its decision in Diamond v. Bland (1970). The opinion commanded six votes, with one justice filing a three-line cursory dissent. Subsequently the United States Supreme Court on four occasions denied respondents’ petitions for certiorari and rehearing. Nothing has occurred relevant to the problem since the high court repeatedly refused to intervene in this proceeding other than its rendition of a 5-4 opinion in a case originating in Oregon and bearing superficial similarity to the instant matter (Lloyd Corp. v. Tanner (1972). Leaning on that fragile reed, the majority now abjectly surrender the previous considered position of this court, overlook the unmistakable independent non-federal grounds upon which our earlier opinion could have been based, ignore basic guarantees of our state Constitution, and deal a blow to fundamental principles of federalism as old as our republic.

Convenient as it may be to reduce diverse federal and state premises to a single body of “constitutional law,” there are at least two reasons why this simplistic process is inappropriate. First, it contradicts the hierarchical logic of constitutional doctrine. Second, the provisions and historical bases of the federal and California Constitutions are not the same. Our task, then, is to dispose of state constitutional questions before invoking federal doctrine and authority.

Inverting the process, the majority first examine the Fourteenth Amendment, as interpreted by Lloyd, [and] find it absolutely controlling and look no further. Much as I disagree with it, I can understand how typical is the majority’s dereliction in the arena of state constitutional rights. Unfortunately few state courts steadfastly protect their own state constitutional guarantees.

The second reason why courts should not recognize a monolithic body of “constitutional law” emerges from consideration of the text and background of the Constitution of the State of California. In short, the guarantees of individual liberties contained in the California Constitution were not founded upon, are not dependent upon, and have a status independent of, the Constitution of the United States.

Unfortunately by abjectly surrendering the right of this state court to decide on state constitutional grounds the basic issue of freedom to petition the state government for redress of grievances through state elective procedures, the majority blur the lines of demarcation between two separate and distinct judicial systems. Their abdication of the previous decision of this court is a serious blow to state sovereignty and to the independence which has previously been the hallmark of this court.

In view of the prominence of the shopping center as a gathering place for large numbers of people, the tenuous nature of defendant’s property right in the center with regard to the entry of the public on the premises, and the fact that plaintiff is seeking to exercise at the center a right which is at the fountainhead of all of our liberties, it is my view, consistent with the cases cited above, that under article I, section 9, of the California Constitution, defendant may not prohibit plaintiff’s activities on its premises.

It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the Inland Center [the mall at issue here]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations would not markedly dilute defendant’s property rights. On the other hand, to deny plaintiff access to the Inland Center would appreciably diminish its ability to qualify an initiative measure for the state ballot.

With remarkable candor the majority reveal what this case is all about: “defendant’s private property interests outweigh plaintiffs’ own interests in exercising First Amendment rights”. That naked conclusion is but a recitation of a long discredited shibboleth of nineteenth century legal and political thought. It is conspicuously misplaced in a contemporary opinion of this court.

I would prefer to heed Justice Jackson’s warning in his concurring opinion in Edwards v. California (1941) 314 U.S. 160, “Property can have no more dangerous, even if unwitting, enemy than one who would make its possession a pretext for unequal or exclusive civil rights.” Private ownership must be respected, but its enforceable rights that diminish the fundamental rights of others should be tempered by what Justice Holmes once described as “the equilibrium of social desires.”

I would reverse the trial court’s order and direct the trial court to reinstate the injunction heretofore issued.

[Chief Justice Tobriner and Justice Sullivan concurred with Justice Mosk’s dissent.]

 

Robins v. Pruneyard Shopping Center (1979), 23 Cal.3d 899

Robins v. Pruneyard Shopping Center (1979), 23 Cal.3d 899, 592 P.2d 341

NEWMAN, J.

In this appeal from a judgment denying an injunction we hold that the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution. Our main questions are: (1) Did Lloyd Corp. v. Tanner (1972) recognize federally protected property rights of such a nature that we now are barred from ruling that the California Constitution creates broader speech rights as to private property than does the federal Constitution. (2) If not, does the California Constitution protect speech and petitioning at shopping centers?

This court last faced those issues in Diamond v. Bland (1974) (Diamond II), wherein Diamond v. Bland (1970) (Diamond I) was reversed because of Lloyd Corp. v. Tanner. The Diamond cases involved facts much like those of the instant case. Diamond II stated: “Lloyd’s rationale is controlling here. In this case, as in Lloyd, plaintiffs have alternative, effective channels of communication, for the customers and employees of the center may be solicited on any public sidewalks, parks and streets adjacent to the Center and in the communities in which such persons reside.

The opinion articulating that conclusion did not examine the liberty of speech clauses of the California Constitution. A footnote suggested that such an inquiry was barred by federal and state supremacy clauses because “under the holding of the Lloyd case, the due process clause of the United States Constitution protects the property interests of the shopping center owner from infringement. Respondents contend that . . . since a ruling that petitioners’ activity here was protected by the California Constitution would diminish respondents’ property rights under Lloyd, we may not rule [in favor of petitioners].

Members of the public are rightfully on Pruneyard’s premises because the premises are open to the public during shopping hours. Lloyd when viewed in conjunction with Hudgens does not preclude law-making in California which requires that shopping center owners permit expressive activity on their property. To hold otherwise would flout the whole development of law regarding states’ power to regulate uses of property and would place a state’s interest in strengthening First Amendment rights in an inferior rather than a preferred position. (2) “All private property is held subject to the power of the government to regulate its use for the public welfare.”

Property rights must yield to the public interest served by zoning laws, to environmental needs, and to many other public concerns. Several years have passed since this court decided Diamond II. Since that time central business districts apparently have continued to yield their functions more and more to suburban centers. In assessing the significance of the growing importance of the shopping center we stress also that to prohibit expressive activity in the centers would impinge on constitutional rights beyond speech rights. Courts have long protected the right to petition as an essential attribute of governing. The California Constitution declares that “people have the right to … petition government for redress of grievances ….” (Art. I, § 3.) That right in California is, moreover, vital to a basic process in the state’s constitutional scheme – direct initiation of change by the citizenry through initiative, referendum, and recall. (Cal. Const., art. II, §§ 8, 9, and 13.)

To protect free speech and petitioning is a goal that surely matches the protecting of health and safety, the environment, aesthetics, property values and other societal goals that have been held to justify reasonable restrictions on private property rights. No California statute prescribes that shopping center owners provide public forums. But article I, section 2 of the state Constitution reads: “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.” Though the framers could have adopted the words of the federal Bill of Rights they chose not to do so. Special protections thus accorded speech are marked in this court’s opinions.

We therefore hold that Diamond II must be overruled. A closer look at Lloyd Corp.[v. Tanner], has revealed that it does not prevent California’s providing greater protection than the First Amendment now seems to provide. We conclude that sections 2 and 3 of article I of the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.

The judgment rejecting appellants’ request that Pruneyard be enjoined from denying access to circulate the petition is reversed.

Bird, C. J., Tobriner, J., and Mosk, J., concurred.

RICHARDSON, J.

I respectfully dissent. The majority relegates the private property rights of the shopping center owner to a secondary, disfavored, and subservient position vis-a-vis the “free speech” claims of the plaintiffs. Such a holding clearly violates federal constitutional guarantees announced in Lloyd Corp. v. Tanner (1972).

The application of our Diamond [II] holding to the case before us is clear and inescapable. Nonetheless, the present majority now disavows Diamond [II] and attempts to distinguish Lloyd as “primarily a First Amendment case” rather than a private property case. Apparently, the majority now believes that Lloyd merely held that the leaflet distributors in that case lacked any First Amendment rights to assert against the shopping center owners, a deficiency the majority would now cure by creating more substantial “free speech” rights under the California Constitution than are recognized under the First Amendment.

The controlling import of the supremacy clause on the issue before us is readily apparent. The United States Supreme Court, interpreting the United States Constitution, has declared that an owner of a private shopping center “when adequate, alternative avenues of communication exist,” has a property right protected by the Fifth and Fourteenth Amendments which is superior to the First Amendment right of those who come upon the shopping center premises for purposes unrelated to the center. In such cases, no state court, interpreting a state Constitution, including this court interpreting the California Constitution, can contravene such a federal constitutionally protected right. Thus, in this case, the majority is prevented from relying on the California Constitution to impair or interfere with those property rights. We are bound by the United States Supreme Court interpretations of the United States Constitution. More specifically, in a confrontation between federal and state constitutional interests, federally protected property rights recognized by the United States Supreme Court will prevail against state protected free speech interests where alternative means of free expression are available.

 

Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)

Mr. Justice REHNQUIST delivered the opinion of the Court.

We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented. Those are whether 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

Appellants first contend that Lloyd Corp. v. Tanner (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Our reasoning in Lloyd, however, does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.

Appellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law. It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions.

There is also little merit to appellants’ argument that they have been denied their property without due process of law. In Nebbia v. New York, 291 U.S. 502 (1934), this Court stated: “Neither property rights nor contract rights are absolute . . . Equally fundamental with the private right is that of the public to regulate it in the common interest. . . . The guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objective sought to be attained.”

Appellants have failed to provide sufficient justification for concluding that this test is not satisfied by the State’s asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution.

Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others. [However,] the shopping center by choice of its owner is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law.

We conclude that neither appellants’ federally recognized property rights nor their First Amendment rights have been infringed by the California Supreme Court’s decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants’ property. The judgment of the Supreme Court of California is therefore

Affirmed.

 

Savage v. Trammell Crow Co. (1990), 223 Cal.App.3d 1562

Savage v. Trammell Crow Co. (1990), 223 Cal.App.3d 1562, 273 Cal.Rptr. 302

BENKE, J.

In this case a security guard for a shopping center prevented plaintiff Herbert C. Savage from distributing religious tracts in the shopping center parking lot. In response Savage filed a complaint against the management company which is responsible for operation of the shopping center and the security company which employed the guard. Among other relief, Savage sought a preliminary injunction permitting him to distribute his tracts in the parking lot. In opposing Savage’s application for an injunction, the shopping center argued litter and traffic problems justified its prohibition on leafletting in the center’s parking lot. We affirm in part and reverse in part. The owner of a shopping center may impose reasonable limits on the time, place and manner of such activity. We conclude the shopping center presented persuasive evidence its prohibition against leafletting in the parking lot is such a limitation. Thus, we affirm the order denying Savage a preliminary injunction allowing leafletting in the parking lot.

B. Regulation of Time, Place, or Manner

In Lloyd Corp. v. Tanner (1972), the United States Supreme Court held the right to free expression guaranteed by the First Amendment to the federal Constitution did not outweigh a shopping center owner’s Fifth Amendment right to control its property. Thus in Lloyd the court held that, consistent with the First Amendment, a shopping center could prohibit distribution of leaflets which communicated no information relating to the center’s business. In Robins v. Pruneyard Shopping Center, our Supreme Court held that unlike the First Amendment, California’s Constitution protects the free speech and petition rights of California citizens even when those rights are exercised in a privately owned shopping center. Relying on article I, section 2, subdivision (a) of the California Constitution, the “liberty of speech” clause, the court in Robins found a shopping center could not prevent a group of high school students from soliciting signatures on a petition opposed to a United Nations resolution on “Zionism.”

In extending the liberty of speech clause to private shopping centers, the court in Robins stated: “By no means do we imply that those who wish to disseminate ideas have free rein.” Rather the court found that property owners may regulate the time, place and manner of such activity. Indeed because of the owners’ ability to regulate expressive activities, the court reasoned any intrusion on private property rights was limited.

Thus, although Savage’s right to engage in expressive activity at shopping centers is found solely in the broader protection provided by California’s Constitution, a shopping center’s power to impose time, place, and manner restrictions on such activity is nonetheless measured by federal constitutional standards. “In essence, Robins v. Pruneyard Shopping Center, in affirming a shopping center owner’s right to impose reasonable time, place and manner restrictions on petitioning activity, recognized in the owner important rights of substance; those rights are identified as freedom from disruption of normal business operations and freedom from interference with customer convenience.

The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” In this case the ban on leafletting in the parking lot is based in Burns’s concerns about littering and interference with ingress and egress from the center. Plainly these concerns are unrelated to the message any particular leafletter is attempting to convey. In addition to being content neutral, the parking lot ban is also narrowly tailored to meet a significant interest of the shopping center. Our courts have consistently recognized a property owner’s interest in controlling litter and traffic.

In sum, Trammell Crow’s parking lot ban is a reasonable restriction on the time, place or manner of activities protected by the First Amendment and the liberty of speech clause. The ban is content neutral, narrowly drawn to protect the center’s legitimate interests and provides an adequate alternative forum for expression. Accordingly, the trial court did not abuse its discretion in denying Savage’s application for a preliminary injunction permitting him to distribute his gospel tracts in the parking lot.

 

Golden Gateway Center v. Golden Gateway Tenants Assn. (2001), 26 Cal.4th 1013

BROWN, J.

In a groundbreaking decision over 20 years ago, we departed from the First Amendment jurisprudence of the United States Supreme Court and extended the reach of the free speech clause of the California Constitution to privately owned shopping centers. (Robins v. Pruneyard Shopping Center (1979). Since then, courts and commentators have struggled to construe Robins and determine the scope of protection provided by California’s free speech clause. Today, we clarify Robins and consider whether a tenants association has the right to distribute its newsletter in a privately owned apartment complex under article I, section 2, subdivision (a) of the California Constitution.1 We conclude it does not.

We granted review to determine: (1) whether the tenants association of a large apartment complex has the right, under the California Constitution, to distribute its newsletter and other leaflets concerning residence in the complex to tenants in the building; and, if so, (2) whether a ban on the distribution of these materials to tenants constitutes an unreasonable time, place and manner restriction on free speech.

Article I, section 2, subdivision (a) states: “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.” Unlike the United States Constitution, which couches the right to free speech as a limit on congressional power, the California Constitution gives “[e]very person” an affirmative right to free speech. Accordingly, we have held that our free speech clause is “more definitive and inclusive than the First Amendment.

Despite the clarity of its ultimate disposition, Robins was less than clear “as to the scope of the free speech rights it was recognizing.” For example, Robins did not address the threshold issue of whether California’s free speech clause protects against only state action or also against private conduct. Robins also provided little guidance on how to apply it outside the large shopping center context. Not surprisingly, numerous legal commentators have pointed out and questioned these curious omissions in Robins. Moreover, most of our sister courts interpreting state constitutional provisions similar in wording to California’s free speech provision have declined to follow Robins.5 Indeed, some of these courts have been less than kind in their criticism of Robins. Nonetheless, Robins has been the law in California for over 20 years. Whether or not we would agree with Robins’s recognition of a state constitutional right to free speech in a privately owned shopping center if we were addressing the issue for the first time, we are obliged to follow it under principles of stare decisis. “ ‘Even in constitutional cases, the doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some “special justification.” Because Robins is embedded in our free speech jurisprudence with no apparent ill effects, no such justification exists here.

We are, however, mindful of the ambiguities in Robins. In the hopes of clarifying Robins and providing some guidance as to the scope of the free speech rights guaranteed by the California Constitution, we now answer some of the questions left open by Robins. Based on these answers, we hold that the Tenants Association has no state constitutional right to leaflet in the Complex.

By neglecting to mention state action, Robins created a noticeable gap in its reasoning and left the existence of a state action limitation on California’s free speech clause in doubt. Not surprisingly, the uncertainty surrounding the fate of the state action limitation has spawned a debate over the wisdom of extending our free speech clause to private actors.6 We now fill this gap and conclude that California’s free speech clause contains a state action limitation.

The absence of an explicit state action limitation in article I, section 2, subdivision (a) is not dispositive. In the past, we have found a state action requirement even though the language of the California constitutional provision in question — article I, section 7 — did not expressly state such a requirement. We declined to apply that provision “without regard to any state action doctrine whatsoever” absent some “suggestion” in the provision’s history for abandoning such a limitation. Thus, “the omission [of state action language] … does not necessarily evince an intent to apply constitutional guarantees to private parties.”

Moreover, the language of article I, section 2, subdivision (a) equally supports a state action limitation. The second sentence of the clause — which prohibits any “law” from restraining or abridging “liberty of speech” — indicates an intent to protect against only state actions. “Adding this prohibition on oppressive laws might mean that, although the delegates wished to declare generally the sanctity of free expression, they feared only government intrusions.” Such a reading is consistent with the view courts take of the Fourth Amendment, which is similar in structure to California’s free speech clause.

Thus, the language of California’s free speech clause is ambiguous and supports either the presence or absence of a state action limitation. Where, as here, the text is “not conclusive” , we must look to the history behind California’s free speech clause for guidance. This history indicates that the framers intended to impose a state action requirement.

We initially note that the debates over the California Constitution do not show an intent to extend the reach of its free speech clause to private actors. Thus, the debates over California’s free speech clause give no indication that the framers wished to guard against private infringements on speech. Meanwhile, the historical antecedents of our free speech clause strongly suggest that the framers of the California Constitution intended to include a state action limitation. Many of the framers of the 1849 California Constitution came from New York. Not surprisingly, in drafting the free speech clause, the framers borrowed from the free speech clause of the New York Constitution. Because they adopted New York’s free speech clause virtually unchanged and with no debate, the history behind New York’s clause is relevant to interpreting California’s free speech clause.

A review of this history reveals that the framers of the New York Constitution intended its free speech clause “to serve as a check on governmental, not private, conduct.” Thus, the framers of the New York Constitution undoubtedly intended that New York’s free speech clause protect against only state action — and not private conduct. Because the framers of the California Constitution adopted New York’s free speech clause almost verbatim, we reasonably conclude they had the same intent as their New York counterparts. Based on the historical evidence suggesting that the framers of California’s free speech clause intended to protect against governmental—and not private — encroachments, and the absence of any evidence to the contrary, we see no grounds for reaching a different conclusion.

Robins does not alter our conclusion. Contrary to the dissent’s unsupported assertion, Robins did not necessarily reject a state action limitation. It could have “simply broadened the federal definition of ‘state action’ to embrace the peculiar facts of the case.” Over the past 20 years, numerous commentators have explicitly and implicitly recognized such a possibility and noted that Robins left open the issue of whether California’s free speech clause required state action.8

Our recent statement in Gerawan [Farming, Inc. v. Lyons(2000)] that California’s free speech clause “runs against the world, including private parties as well as governmental actors” does not dictate a contrary result. Because the presence of a state actor was undisputed, we did not carefully consider whether California’s free speech clause requires state action. Therefore, the language in Gerawan suggesting that our free speech clause protects against private action is nonbinding dictum.

Finally, including a state action limitation comports with the decisions of most of our sister courts. Virtually every state court construing a state constitutional provision with language similar to California’s free speech provision has found a state action requirement.9 Although their reasoning varies somewhat, they all explicitly or implicitly invoke the venerable principle that “state constitutions … serve as limitations on the otherwise plenary power of state governments.” Under this principle, “the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other.”

Like our sister courts, we recognize that this careful differentiation between government and private conduct has been a hallmark of American constitutional theory since the birth of our nation and serves two important purposes. First, this demarcation is necessary to preserve private autonomy. Second, a state action limitation safeguards the separation of powers embodied in every American constitution by recognizing the limited ability of courts “to accomplish goals which are essentially legislative and political.” Neither the text of California’s free speech clause nor our case law reveals an intent to depart from these bedrock principles of constitutional jurisprudence. At the same time, the history behind the clause supports the inclusion of a state action limitation and contains nothing even suggesting a contrary possibility. Accordingly, we hold that article I, section 2, subdivision (a) only protects against state action.10

Of course, finding a state action limitation does not end our inquiry. We must still determine the scope of this limitation. Robins did not, however, define the requisite state action or delineate the scope of free speech rights recognized by the California Constitution. Today, we take the first step in rectifying this situation and conclude that no state action exists here because the Complex is not freely open to the public.

The importance of the public character of the property in determining the scope of California’s free speech clause derives support from Robins ‘s reference to earlier California decisions finding a right to free speech on private property. We conclude that the actions of a private property owner constitute state action for purposes of California’s free speech clause only if the property is freely and openly accessible to the public. Here, the Complex is privately owned, and Golden Gateway, the owner, restricts the public’s access to the Complex. In fact, Golden Gateway carefully limits access to residential tenants and their invitees. Thus, the Complex, unlike the shopping center in Robins, is not the functional equivalent of a traditional public forum. Accordingly, Golden Gateway’s actions do not constitute state action for purposes of California’s free speech, and the Tenants Association has no right to distribute its newsletter pursuant to article I, section 2, subdivision (a).

In reaching this conclusion, we note that judicial enforcement of injunctive relief does not, by itself, constitute state action for purposes of California’s free speech clause. Although the United States Supreme Court has held that judicial effectuation of a racially restrictive covenant constitutes state action. We therefore decline to extend it to this particular case, where the private property owner merely seeks judicial enforcement of a neutral lease provision.

In closing, we emphasize that our decision today does not give apartment owners carte blanche to stifle tenant speech. Tenants may still have remedies under conventional property law principles. Moreover, many statutes and ordinances serve to protect tenants against unreasonable lease provisions and restrictions. Finally, tenants may always seek a legislative solution tailored to their particular concerns. Our decision today merely seeks to avoid “rigid rectitude in stultifying, imposed uniformity” by declining to constitutionalize a private dispute.

We affirm the judgment of the Court of Appeal.

Concurring Opinion by GEORGE, C.J.

Although I concur in the judgment, I do not join the lead opinion’s discussion or conclusions with regard to the state action doctrine. [Discussion of reasons omitted.]

Dissenting Opinion by WERDEGAR, J.

A majority of this court, while divided in their reasons for so doing, today join in immunizing from state constitutional scrutiny a commercial residential landlord’s suppression of speech among its tenants. Guided by our precedents and the clear language of our state Constitution, I respectfully dissent.

The sole question we face is whether the residents of a large multibuilding apartment community have the right, as against the landlord’s wishes, to communicate with each other through the distribution at their front doors of leaflets, subject to reasonable time, place, and manner regulations and the right of any resident who so wishes to opt out of receiving such communications. I would hold that they do.

In providing that all Californians “may freely speak, write and publish” their sentiments, the framers of the state free speech clause drew no distinction, among those who might seek to obstruct such activities, between state and private actors. They specified instead, in plain language, a right of free speech that runs against both — and protects against interference by either.

Section 2(a) also, as the lead opinion emphasizes, provides that “[a] law may not restrain or abridge liberty of speech or press,” thus explicitly prohibiting state legislative, and implicitly prohibiting state executive and judicial, suppression of protected speech. But the latter proviso neither grammatically nor legally qualifies the simple and sweeping free speech guarantee with which section 2(a) begins. Nor, contrary to the lead opinion, does that proviso indicate an intent that the clause as a whole protect against only state actions. Rather, as the lead opinion concedes and as commentators have observed, that the “express prohibition against a ‘law’ restraining or abridging free speech” resides in (and on its face purports to govern) the second sentence, alone, “arguably bolsters such an interpretation” of the clause as a whole as would infer “an intent to protect the right to free speech against private intrusions”.

In consequence of section 2(a)‘s plain language, we consistently have rejected any suggestion that California’s free speech clause carries a state action limitation.

We should adhere to our established constitutional jurisprudence in this case. Consequently, unless we conclude Golden Gateway’s leafleting ban is a reasonable regulation of the speech at issue, we must balance the private and societal interest in that speech against any competing constitutional concerns that would be implicated were we to rule that section 2(a) forbids enforcement of that ban.

A. Is the ban a reasonable regulation of affected speech?

Golden Gateway unquestionably retains the right to impose reasonable time, place, and manner restrictions on expressive activity at its premises. Such restrictions must, however, be “ ‘ “justified without reference to the content of the regulated speech, … narrowly tailored …, and … leave open ample alternative channels for communication of the information.” ’ ”

1. Does the ban afford ample alternative channels for communication?

Even assuming Golden Gateway’s leafleting ban can be considered content neutral,6 the record demonstrates that it fails to leave open ample alternative channels of communication, in that its only allowance for distribution of unsolicited printed matter is posting on laundry room bulletin boards.

2. Is the ban narrowly tailored to accomplish its legitimate objectives?

The record also establishes that Golden Gateway’s ban on solicitations and leafleting goes much further than is necessary to address its asserted legitimate concerns for tenant safety, tenant privacy, or cleanliness of the premises.

B. Balancing of affected constitutional interests

Since Golden Gateway’s ban is not a reasonable regulation, we must, in order to resolve this matter, balance the competing constitutional interests implicated in its efforts to prohibit the Tenants Association’s leafleting. Such interests include, on the one hand, the Tenants Association’s interest in freely speaking, writing and publishing to tenants at Golden Gateway Center and those tenants’ interest in receiving the Tenants Association’s written communications. They include, on the other hand, the privacy interests of individual tenants and Golden Gateway’s property interests.

[Justice Werdegar then engaged in the balancing analysis, concluding that tenants’’ rights to distribute and receive unsolicited communications among themselves outweigh the complex owners’ property interests. She then reviewed the history of the state speech clause, concluding:] ultimately, neither the text of the state free speech clause, the history of its adoption, our prior pronouncements, nor considerations of constitutional theory supports judicial imposition of a state action limitation on Californians’ free speech rights. Consequently, I join with the Chief Justice in rejecting the lead opinion’s discussion and conclusions with regard to the state action doctrine and would adhere to our traditional understanding that, even when a restriction on speech “does not implicate any right to freedom of speech under the First Amendment, [it may nevertheless] implicate such a right under [California’s free speech clause]”.

 

Fashion Valley Mall v. NLRB (2007), 42 Cal.4th 850

MORENO, J.

We granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. For the reasons that follow, we hold that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.

On October 4, 1998, 30 to 40 Union members had distributed leaflets to customers entering and leaving the Robinsons–May store at the Mall.2 The leaflets stated that Robinsons–May advertises in the Union–Tribune, described several ways that the newspaper allegedly treated its employees unfairly, and urged customers who believed “that employers should treat employees fairly” to call the newspaper’s “CEO,” listing his name and telephone number. We must determine, therefore, whether a shopping center violates California law by banning from its premises speech urging the public to boycott one or more of the shopping center’s businesses.

It has been the law since . . . 1964, and remains the law, that a privately owned shopping center must permit peaceful picketing of businesses in shopping centers, even though such picketing may harm the shopping center’s business interests. Our decision in Diamond I recognized that citizens have a strengthened interest, not a diminished interest, in speech that presents a grievance against a particular business in a privately owned shopping center, including speech that advocates a boycott.

The level of scrutiny with which we review a restriction of free speech activity depends upon whether it is a content-neutral regulation of the time, place, or manner of speech or restricts speech based upon its content. A content-neutral regulation of the time, place, or manner of speech is subjected to intermediate scrutiny to determine if it is “(i) narrowly tailored, (ii) serves a significant government interest, and (iii) leaves open ample alternative avenues of communication.

Prohibiting speech that advocates a boycott is not a time, place, or manner restriction because it is not content neutral. The Mall’s rule prohibiting persons from urging a boycott is improper because it does not regulate the time, place, or manner of speech, but rather bans speech urging a boycott because of its content.

We conclude, therefore, that the Mall’s rule prohibiting all speech that advocates a boycott is content based and thus is subject to strict scrutiny. Strict scrutiny for purposes of the federal Constitution means that a content-based speech restriction must be “necessary to serve a compelling state interest, and … narrowly drawn to achieve that end.” The right to free speech in shopping centers that constitute public fora under the California Constitution deserves no less protection. In order to ensure that regulations of speech are not “based on hostility—or favoritism—towards the underlying message expressed’ ”, a content-based rule limiting expression in a shopping center that constitutes a public forum must be necessary to serve a compelling interest and be narrowly drawn to achieve that end.

The Mall’s rule prohibiting speech that advocates a boycott cannot withstand strict scrutiny. A shopping mall is a public forum in which persons may reasonably exercise their right to free speech guaranteed by article I, section 2 of the California Constitution. Shopping malls may enact and enforce reasonable regulations of the time, place and manner of such free expression to assure that these activities do not interfere with the normal business operations of the mall, but they may not prohibit certain types of speech based upon its content, such as prohibiting speech that urges a boycott of one or more of the stores in the mall.

Dissenting Opinion by CHIN, J.

I dissent.

By a bare four-to-three majority, Robins v. Pruneyard Shopping Center (1979) overruled a decision then only five years old and held that public free speech rights exist on private property under the California Constitution. Pruneyard was wrong when decided. In the nearly three decades that have since elapsed, jurisdictions throughout the nation have overwhelmingly rejected it. We should no longer ignore this tide of history. The time has come for us to forthrightly overrule Pruneyard and rejoin the rest of the nation in this important area of the law. Private property should be treated as private property, not as a public free speech zone.

Even if we do not overrule Pruneyard, we should at least not carry it to the extreme that the majority does. Pruneyard is easily distinguished. The free speech activity that Pruneyard sanctioned was compatible with normal use of the property. The opposite is true here. Fashion Valley Mall is a privately owned shopping center. A shopping center exists for the individual businesses on the premises to do business. Urging a boycott of those businesses contradicts the very purpose of the shopping center’s existence. It is wrong to compel a private property owner to allow an activity that contravenes the property’s purpose.

B. Pruneyard Revisited

Pruneyard was controversial when decided. In the three decades since then, it has received scant support and overwhelming rejection around the country. As the 2001 plurality opinion in Golden Gateway noted, “most of our sister courts interpreting state constitutional provisions similar in wording to California’s free speech provision have declined to follow [Pruneyard ]. Indeed, some of these courts have been less than kind in their criticism of [Pruneyard ] As of the time we decided Golden Gateway, the following states, many with constitutional free speech language essentially identical to California’s, had rejected any form of a Pruneyard approach regarding shopping centers and free speech rights: Arizona, Connecticut, Georgia, Michigan, Minnesota, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, and Wisconsin. In the six years since we decided Golden Gateway, we have become yet more isolated. No new state has followed our lead. Two more states have refused to follow the Pruneyard approach: Hawai‘i and Iowa. Moreover, as I explain, the few states that previously adopted an approach like Pruneyard are generally retreating. The time has come to recognize that we are virtually alone, and that Pruneyard was ill-conceived.

We do sometimes overrule our prior decisions, and appropriately so. In this case it would be entirely proper to do so, especially in light of our increasing isolation in the six years since Golden Gateway was decided. The Pruneyard court itself ignored stare decisis. It overruled a decision of this court that was only five years old at the time. Why should a decision that overruled a recent decision, and that identified nothing that occurred in the intervening years to justify the action, be sheltered from reconsideration? Moreover, the Pruneyard court made no effort to find anything in the text of article I, section 2, subdivision (a) of the California Constitution, its historical sources, or the process that led to its adoption, that suggests any intent to extend its terms to private property.

I do not denigrate free speech rights. But free speech rights and private property rights can and should coexist. The last 30 years have not seen a significant diminution of free speech opportunities in the many jurisdictions that have followed the high court’s lead regarding private property. The Union here is not without recourse if it wants to urge a lawful boycott of any business or engage in any other protected freedom of expression. It has plenty of outlets to exercise its free speech rights. If it wants to picket, it simply has to do so on public property or seek permission from private property owners. The Union can exercise its free speech rights, for example, just outside the shopping center, including near the entrances. Additionally, and especially today with the advent of the Internet and other forms of mass communication, “other public forums [are available] for the distribution and dissemination of … ideas.” But I would find no right to engage in speech activity on private property over the owner’s objection.

C. Pruneyard Distinguished

Even if we stubbornly maintain our position of “magnificent isolation” in the face of this tide of history, we should not carry Pruneyard to the extreme of forbidding private property owners from controlling expressive activity on their property—urging a boycott of its tenants—that is inimical to the purpose for which the property is being used. Pruneyard is readily distinguishable.

Assuming free speech rights exist in shopping centers, the fact remains that they are not Hyde Park in London, Central Park in New York, or the National Mall in Washington, D.C., areas that are quintessential public free speech zones. Shopping centers are private property dedicated to doing business. Their owners should not have to permit all expressive activity that the California and United States Constitutions protect in public places. A shopping center owner should be allowed to enforce reasonable restrictions to protect its business activities even if the government could not impose similar restrictions.

In finding no compelling interest, the majority merely asserts that the right of persons to use property they do not own is more compelling than the landowner’s right to use its own property for the very purpose it exists. I would instead give some priority to the property’s owner. The bankruptcy of the majority’s position is shown by its further assertion that “the Mall cites no authority, and we are aware of none, that holds that a store has a compelling interest in prohibiting this traditional form of free speech.” Good reason exists for this lack of authority. Because most of the country, including the United States Supreme Court, rejects the very notion of free speech rights on private property, the issue never arises. Only in California is the issue relevant. The only tradition that is relevant to this case is the tradition, followed in most of the country, of finding no free speech rights on private property. The majority is trampling on tradition, not following it.

 

Stanley Mosk, “State Constitutionalism: Both Liberal and Conservative”

Stanley Mosk, “State Constitutionalism: Both Liberal and Conservative,” 63 Tex. L. Rev. 1081 (1985)

[Justice Mosk put the Pruneyard sequence of cases in perspective:

In this essay, I shall examine the recent re-emergence of state constitutional law in light of the tumultuous history of states’ rights. I intend to show that state constitutionalism has something to offer both liberals and conservatives. For the liberal, there is the prospect of continued expansion of individual rights and liberties; the work of the Warren Court can be carried on at the state level. For the conservative, state constitutionalism represents the triumph of federalism; crucial decisions about the apportionment of rights and benefits are decided by state courts responsive to local needs, rather than by a distant United States Supreme Court, perceived as insensitive. The future of state constitutionalism depends on whether liberals and conservatives can put aside their traditional differences and join in supporting a concept that provides mutual benefits.

Justice Brennan’s dissenting opinion in Michigan v. Mosley42 reminded the states that they could properly bestow on their citizens more individual rights that the federal charter requires.43 Justice Stevens has added his voice to Justice Brennan’s in calling on the state courts to develop their constitutions independent of the federal constitution.44 An increasing number of states have accepted this cordial invitation.

At times it has appeared not only that Justices Brennan and Stevens accepted state supremacy in interpretation of state constitutions, but also that a clear majority of the Supreme Court agreed. The best example is a series of cases involving shopping centers

Consider the situation in which a small, orderly group of citizens undertakes to pass out leaflets, or to solicit signature on petitions, in a privately owned shopping center. The shopping center owners, who may have different views on the issue involved, seek to prohibit that activity. Obviously there is a tension between two constitutional guarantees. On the one hand, the citizens assert their rights to speak freely and to petition their government for a redress of grievances. On the other hand, the shopping center owner asserts his right to possess and control his private property and to exclude all non-business related activity. Which right is to prevail? Several states and the United States Supreme Court have faced that dilemma.46

The Supreme Court of California held in 1970 in Diamond v. Bland47 that unless there is obstruction or undue interference with normal business operations, the bare title of the property owner does not outweigh the substantial interest of individuals and groups to engage in peaceful and orderly free speech activities on the premises of shopping centers open to the public.48 The shopping center owner sought certiorari and petitioned three times for rehearing from denial of cert; in each instance he was rebuffed by the Supreme Court.49 It appeared that Diamond was the law.

Two years later, however, the Supreme Court examined an identical case from Oregon—Lloyd Corp. v. Tanner50—and held that the owners had the rights to prohibit distribution of political handbills unrelated to the operation of the shopping center. Back to the California Supreme Court came the defendants in Diamond, asking to be relieved from the previous orders. A four-to-three majority of the court agreed it was bound by Lloyd.51

At this point a minority of the state court shifted gears. In the original opinion, the California court had relied on the first amendment to the United States Constitution and on such cases as Marsh v. Alabama52 and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.53 The second time around the three-judge minority urged the same result under ‘unmistakable independent non-federal grounds upon which our earlier opinion could have been based.’54 But for the moment, a majority of the California court retained consistency with federal law.

In 1979, the California court confronted another shopping center case. This time it adopted the view of the Diamond dissent. A new majority decided in Robins v. Pruneyard Shopping Center55 that the free speech provisions of the state constitution offer ‘greater protection than the First Amendment now seems to provide.’56 When the United States Supreme Court granted certiorari, one could sense doom to the theory of state constitutionalism. But to the considerable relief and pleasant surprise of those urging an expanded role for state constitutions, the Supreme Court unanimously upheld the California decision.57 Justice Rehnquist wrote the opinion that declared the reasoning in Lloyd ‘does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.’58

In the wake of Robins, state courts turned more frequently than ever to their state constitutions. But if these courts believed that the Supreme Court would relax the ‘adequate and independent state ground’ doctrine60 to encourage development of state constitutional law, they were mistaken. In Michigan v. Long,61 Justice O’Connor made it clear that if a state decision is bottomed on both federal and state authority, the Court will not deem that a bar to a grant of certiorari. Indeed, the Court will consider that the state court meant to employ federal authority unless it declares ‘by a plain statement’ that the federal precedents were merely illustrative and did not compel the result reached.62

The Supreme Court is not alone in its distrust of state courts’ use of their constitutions as adequate and independent state grounds. Some commentators have described the increased use of state constitutions as a ploy by liberal justices and courts to evade the more conservative approach of the Supreme Court. In a number of states, initiative measures have been aimed at curbing the use of independent state grounds.65 The voters of California, for example, have adopted a measure entitled by its promoters the ‘victims’ bill of rights.’ It provides in effect that state courts shall strictly abide by Supreme Court decisions on constitutional issues.66 Thus, even as state constitutionalism enjoys a vitality it has not experienced since the early years of this nation, it faces threats from several quarters. Whether this body of law will survive depends upon the extent to which liberals and conservatives can unite to support it.

 

State v. Schmid, 423 A.2d 615 (N.J. 1980)

The opinion of the Court was delivered by HANDLER, J.

While distributing political literature on the campus of Princeton University, defendant Chris Schmid, a member of the United States Labor Party, was arrested and charged by the University with trespass upon private property. He was subsequently convicted under the State’s penal trespass statute. On this appeal he challenges the conviction on the grounds that it stems from a violation of his federal and state constitutional rights to freedom of speech and assembly.

[Justice Handler first reviewed federal constitutional law concerning state action c. 2000 and concluded:] First Amendment principles as applied to the owners of private property are still evolving. The precise question in this case has not been definitively resolved or even clearly foreshadowed by extant decisional authority. Furthermore, invoking First Amendment strictures against private property owners, as has been noted, necessarily engenders countervailing concerns for legitimate private property rights, e. g., PruneYard Shopping Center v. Robins. In this case, the difficulty of the decisional task and the uncertainty of its solution posed by this consideration are further compounded because the private property is an educational institution. Such institutions, in addition to their own protectable private property interests, are committed to the achievement of important societal educational objectives which are generally consistent with First Amendment purposes. While these purposes may temper the protections accorded private property, the legitimate and genuine property interests of educational institutions should not be denuded because of the apparent coincidence between the goals of higher education and the First Amendment.

We are thus confronted with strong crosscurrents of policy that must be navigated with extreme care in reaching any satisfactory resolution of the competing constitutional values under the First Amendment in this case. These concerns persuade us to stay our hand in attempting to decide the question of whether the First Amendment applies to Princeton University in the context of the present appeal. Defendant, moreover, has presented compelling alternative grounds for relief founded upon the State Constitution, which we now reach.

Defendant asserts that under the State Constitution he is afforded protection of his expressional rights even if it is not clear that the First Amendment would serve to grant that protection. The United States Supreme Court has recently acknowledged in the most clear and unmistakable terms that a state’s organic and general law can independently furnish a basis for protecting individual rights of speech and assembly. The view that state constitutions exist as a cognate source of individual freedoms and that state constitutional guarantees of these rights may indeed surpass the guarantees of the federal Constitution has received frequent judicial expression.

On numerous occasions our own courts have recognized the New Jersey Constitution to be an alternative and independent source of individual rights. The guarantees of our State Constitution have been found to extend to a panoply of rights deemed to be most essential to both the quality of individual life and the preservation of personal liberty. A basis for finding exceptional vitality in the New Jersey Constitution with respect to individual rights of speech and assembly is found in part in the language employed. Our Constitution affirmatively recognizes these freedoms, viz : Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press…. (N.J.Const. (1947), Art. I, par. 6.) The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances. (N.J.Const. (1947), Art. I, par. 18.)

Our courts have also on occasion observed that the State Constitution serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives. Hence, the explicit affirmation of these fundamental rights in our Constitution can be seen as a guarantee of those rights and not as a restriction upon them. Furthermore, the State Constitution imposes upon the State government an affirmative obligation to protect fundamental individual rights. Finally, the rights of speech and assembly guaranteed by the State Constitution are protectable not only against governmental or public bodies, but under some circumstances against private persons as well. Hence, federal requirements concerning “state action,” founded primarily in the language of the Fourteenth Amendment * and in principles of federal-state relations, do not have the same force when applied to state-based constitutional rights.

We conclude, therefore, that the State Constitution furnishes to individuals the complementary freedoms of speech and assembly and protects the reasonable exercise of those rights. These guarantees extend directly to governmental entities as well as to persons exercising governmental powers. They are also available against unreasonably restrictive or oppressive conduct on the part of private entities that have otherwise assumed a constitutional obligation not to abridge the individual exercise of such freedoms because of the public use of their property

Against this constitutional backdrop must be addressed the question of whether the State Constitution’s guarantees of speech and assembly under Article I, paragraphs 6 and 18 apply to the distribution of political materials by defendant Schmid upon the Princeton University campus on April 5, 1978. This question brings us to the heart of the problem — the need to balance within a constitutional framework legitimate interests in private property with individual freedoms of speech and assembly.

It is also clear that private property may be subjected by the state, within constitutional bounds, to reasonable restrictions upon its use in order to serve the public welfare. the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property. Since it is our State Constitution which we are here expounding, it is also fitting that we look to our own strong traditions which prize the exercise of individual rights and stress the societal obligations that are concomitant to a public enjoyment of private property.

Accordingly, we now hold that under the State Constitution, the test to be applied to ascertain the parameters of the rights of speech and assembly upon privately-owned property and the extent to which such property reasonably can be restricted to accommodate these rights involves several elements. This standard must take into account (1) the nature, purposes, and primary use of such private property, generally, its “normal” use, (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property. This is a multi-faceted test which must be applied to ascertain whether in a given case owners of private property may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly.

 

New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994)

New Jersey Coalition against War in the Middle East v. J.M.B. Realty Corporation, 138 N.J. 326, 650 A.2d 757 (1994)

WILENTZ, C.J.

The question in this case is whether the defendant regional and community shopping centers must permit leafletting on societal issues. We hold that they must, subject to reasonable conditions set by them. Our ruling is limited to leafletting at such centers, and it applies nowhere else.1 It is based on our citizens’ right of free speech embodied in our State Constitution. N.J. Const. art. I, ¶¶ 6, 18. It follows the course we set in our decision in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980).

In Schmid we ruled that our State Constitution conferred on our citizens an affirmative right of free speech that was protected not only from governmental restraint — the extent of First Amendment protection — but from the restraint of private property owners as well. And we set forth the standard to determine what public use will give rise to that constitutional obligation. The standard takes into account the normal use of the property, the extent and nature of the public’s invitation to use it, and the purpose of the expressional activity in relation to both its private and public use. This “multi-faceted” standard determines whether private property owners “may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly.”

Applying Schmid, we find the existence of the constitutional obligation to allow free speech at these regional and community shopping centers clear. Although the ultimate purpose of these shopping centers is commercial, their normal use is all-embracing, almost without limit, projecting a community image, serving as their own communities, encompassing practically all aspects of a downtown business district, including expressive uses and community events. We know of no private property that more closely resembles public property. The public’s invitation to use the property — the second factor of the standard — is correspondingly broad, its all-inclusive scope suggested by the very few restrictions on the invitation that are claimed, but not advertised, by defendants. For the ordinary citizen it is not just an invitation to shop, but to do whatever one would do downtown, including doing very little of anything.

As for the third factor of the standard-the relationship between the purposes of the expressional activity and the use of the property-the free speech sought to be exercised, plaintiff’s leafletting, is wholly consonant with the use of these properties

We therefore find the existence of a constitutional obligation to permit the leafletting plaintiff seeks at these regional and community shopping centers; we find that the balance of factors clearly predominates in favor of that obligation; its denial in this case is unreasonably restrictive and oppressive of free speech: were it extended to all regional and community shopping centers, it would block a channel of free speech that could reach hundreds of thousands of people, carrying societal messages that are at its very core. The true dimensions of that denial of this constitutional obligation are apparent only when it is understood that the former channel to these people through the downtown business districts has been severely diminished, and that this channel is its practical substitute.

We hold that Schmid requires that the free speech sought by the plaintiff — the non-commercial leafletting and its normal accompanying speech (without megaphone, soapbox, speeches, or demonstrations -) -be permitted by defendants subject to such reasonable rules and regulations as may be imposed by them.

We recognize the concerns of the defendants, including their concern that they will be hurt. Those concerns bear on the extent and exercise of the constitutional right and we have addressed them in this opinion. We recognize the depth and legitimacy of those concerns even apart from their constitutional relevance. Defendants have expended enormous efforts and funds in bringing about the success of these centers. We hope they recognize the legitimacy of the constitutional concern that in the process of creating new downtown business districts, they will have seriously diminished the value of free speech if it can be shut off at their centers. Their commercial success has been striking but with that success goes a constitutional responsibility.

Without doubt, despite the fact that the speech permitted — leafleting — is the least obtrusive and the easiest to regulate, and despite the centers’ broad power to regulate, some people will not like it, any more perhaps than they liked free speech at the downtown business districts. Dislike for free speech, however, has never been the determinant of its protection or its benefit. We live with it, we permit it, as we have for more than two hundred years. It is free speech, it is constitutionally protected; it is part of this State, and so are these centers.

Regional and community shopping centers significantly compete with and have in fact significantly displaced downtown business districts as the gathering point of citizens, both here in New Jersey and across America. The converse story, the decline of downtown business districts, is not so easily documented by statistics. But for the purposes of this case, we do not need statistics. This Court takes judicial notice of the fact that in every major city of this state, over the past twenty years, there has been not only a decline, but in many cases a disastrous decline. This Court further takes judicial notice of the fact that this decline has been accompanied and caused by the combination of the move of residents from the city to the suburbs and the construction of shopping centers in those suburbs.

We decide this case not only on the basis of the three-pronged test in Schmid, but also by the general balancing of expressional rights and private property rights. The standard and its elements are specifically designed with that balancing in mind. A more general analysis of the balance provides a further test of the correctness of our determination.

The essence of the balance is fairly described by Justice Handler in Schmid: “Private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Nevertheless, as private property becomes, on a sliding scale, committed either more or less to public use and enjoyment, there is actuated, in effect, a counterbalancing between expressional and property rights.

There is no doubt about the outcome of this balance. On one side, the weight of the private property owners’ interest in controlling and limiting activities on their property has greatly diminished in view of the uses permitted and invited on that property. The private property owners in this case, the operators of regional and community malls, have intentionally transformed their property into a public square or market, a public gathering place, a downtown business district, a community; they have told this public in every way possible that the property is theirs, to come to, to visit, to do what they please, and hopefully to shop and spend; they have done so in many ways, but mostly through the practically unlimited permitted public uses found and encouraged on their property. The sliding scale cannot slide any farther in the direction of public use and diminished private property interests

On the other side of the balance, the weight of plaintiff’s free speech interest is the most substantial in our constitutional scheme. Those interests involve speech that is central to the purpose of our right of free speech. At these centers, free speech, such as leafletting, can be exercised without discernible interference with the owners’ profits or the shoppers’ and non-shoppers’ enjoyment. The weight of the free speech interest is thus composed of a constant and a variable: the constant is the quality of free speech, here free speech that is the most important to society; the variable is its potential interference with this diminished private property interest of the owner. Given the limited free speech right sought, leafletting accompanied only by that speech normally associated with and necessary for leafletting, and subject to the owners’ broad power to regulate, that interference, if any, will be negligible.

We also find as support for our conclusions an enduring principle recognized in Marsh, a principle that remains pertinent for our purposes even though it has not been accepted in this context as a matter of federal constitutional doctrine. The principle of that case (and Logan ) is that the constitutional right of free speech cannot be determined by title to property alone. Thus, where private ownership of property that is the functional counterpart of the downtown business district has effectively monopolized significant opportunities for free speech, the owners cannot eradicate those opportunities by prohibiting it.

If constitutional provisions of this magnitude should be interpreted in light of a changed society, and we believe they should, the most important change is the emergence of these centers as the competitors of the downtown business district and to a great extent as the successors to the downtown business district. The significance of the historical path of free speech is unmistakable and compelling: the parks, the squares, and the streets, traditionally the home of free speech, were succeeded by the downtown business districts, often including those areas, the downtown business districts where that free speech followed. Those districts have now been substantially displaced by these centers. If our State constitutional right of free speech has any substance, it must continue to follow that historic path. It cannot stop at the downtown business district that has become less and less effective as a public forum. It cannot be silenced “as the traditional realm of grassroots political activity withers away.”

Certainty is impossible in determining the undiscoverable intent of this century-old provision in the light of changing times. In the effort, however, we must not forget that our constitutional free speech provision is different from practically all others in the nation. Schmid proclaimed this difference and it is fundamental. In New Jersey, we have an affirmative right of free speech, and neither government nor private entities can unreasonably restrict it. It is the extent of the restriction, and the circumstances of the restriction that are critical, not the identity of the party restricting free speech.

A change of a political nature should also be considered. The recall of elected officials and the adoption or repeal of laws and constitutional provisions through initiative and referendum have become fairly common in this country, the former — recall — now part of New Jersey’s Constitution, the latter — initiative and referendum — a realistic possibility.13 Both depend directly on petitioning and indirectly on the persuasiveness, through free speech, of the candidate, the cause, or the petitioner. Obviously, these centers are the most likely place for realizing the goals of such laws, and perhaps the only practical place. The required number of petition signers cannot be found elsewhere. These are free speech rights of the highest order, the recall provision already approved by the people. It is unthinkable that the free speech provision of our State Constitution will not protect them at these centers.

We look back and we look ahead in an effort to determine what a constitutional provision means. If free speech is to mean anything in the future, it must be exercised at these centers. Our constitutional right encompasses more than leafletting and associated speech on sidewalks located in empty downtown business districts. It means communicating with the people in the new commercial and social centers; if the people have left for the shopping centers, our constitutional right includes the right to go there too, to follow them, and to talk to them.

We do not believe that those who adopted a constitutional provision granting a right of free speech wanted it to diminish in importance as society changed, to be dependent on the unrelated accidents of economic transformation, or to be silenced because of a new way of doing business.

We do not interfere lightly with private property rights, but when they are exercised, as in this case, in a way that drastically curtails the right of freedom of speech in order to avoid a relatively minimal interference with private property, the latter must yield to the former. That does not mean that one is fundamentally more important than the other, although we believe it is, but rather that here the correct resolution of the conflict between those rights is self-evident. What is involved in this case is the right of every person and of every group to make their views known, however popular or unpopular they may be, and the right of the public to hear them and learn from them. What is involved here is the fundamental speech right of a free society. The flow of free speech in today’s society is too important to be cut off simply to enhance the shopping ambience in our state’s shopping centers.

GARIBALDI, J., dissenting.

Today the Court holds that the New Jersey Constitution requires that owners of privately-owned-and-operated shopping malls who invite the public onto their property for commercial purposes must allow the public free access to that property to engage in unrestricted expressional activities, including, through the distribution of leaflets and petitions to shoppers, the promotion of various political or social views. To reach that conclusion, the majority distorts the test announced in; dismisses completely the rights of private-property owners to regulate and control the use of their own property; disregards the trial court’s findings of fact, developed after an extensive eleven-day trial; and instead relies primarily on old theories that the United States Supreme Court and most other state courts long ago discarded.

Under the majority’s rudderless standard, whether property is owned privately or publicly is irrelevant; whether the message is discordant with the private property’s use and purpose likewise makes no difference; and whether less-convenient but equally-accessible and -effective means of distribution exist is of no moment. So long as the private property, here a shopping mall, offers an opportunity for many people to congregate, the private-property owners must grant those people free access for expressional activity, regardless of the message or of its disruptive effect.

The inescapable mission of shopping malls is not to be the successor to downtown business districts; rather, it is to provide a comfortable and conducive atmosphere for shopping, a mission into which mall owners have invested large sums and energy.

Common sense also dictates that privately-owned-and-operated shopping malls are not the functional equivalent of downtown business districts. They are not “replicas of the community itself.” Shopping malls do not have housing, town halls, libraries, houses of worship, hospitals, or schools. Nor do they contain the small stores, such as the corner grocer, that used to serve as the forum for exchange of ideas. Indeed, most shopping malls do not allow people even to walk their dogs there.

The shopping mall is not a community. There is no “mayor of the mall.” Shoppers do not elect a common council. They do not have a say in the day-to-day affairs of the mall, nor do they expect one. They do not visit the mall to be informed or to inform others of social or political causes; they go to shop. Even though the malls sponsor community events, visits from Santa, and orchestral concerts, visitors do not mistake them for grassroots gathering places, Santa’s Workshop, or a mecca of the arts or culture. The majority’s opinion ignores the basic commercial purpose of these private malls, ascribes to them the downfall of urban business districts, and delegates to them the responsibility to fulfill the role once, and arguably still, played by town squares. It does all of that without any legitimate or rational justification.

 

Jennifer N. Coffin, “The United Mall of America: Free Speech,State Constitutions, and the Growing Fortress of Private Property”

 

Josh Mulligan, “Finding a Forum in the Simulated City: Mega Malls, Gated Towns, and the Promise of Pruneyard”

 

Press

Cal. Constitution Art. 1 sec. 2

California Constitution

ARTICLE 1 Declaration Of Rights

Sec. 2. (a) 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.

(b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.   Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

As used in this subdivision, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

 

Mitchell v. Superior Court (1984), 37 Cal.3d 268

Mitchell v. Superior Court (1984), 37 Cal.3d 268, 208 Cal.Rptr. 152

BROUSSARD, Acting C. J.

Petitioners David and Cathy Mitchell seek a writ of prohibition to prevent the Marin County Superior Court from enforcing a discovery order requiring petitioners to produce documents revealing confidential sources of information. Their petition brings before this court for the first time the question whether in a civil action a newsperson has a privilege to refuse to reveal confidential sources or information obtained from those sources.

California by statute and by constitutional amendment (art. I, § 2, subd. (b)) provides that “[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper … shall not be adjudged in contempt … for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper … or for refusing to disclose any unpublished information.”FN2 Since contempt is generally the only effective remedy against a nonparty witness, the California enactments grant such witnesses virtually absolute protection against compelled disclosure. A party to civil litigation who disobeys an order to disclose evidence, however, may be subject to a variety of other sanctions, including the entry of judgment against him.

The Mitchells, as defendants in Synanon’s libel suit, therefore seek to assert a nonstatutory privilege based on the broad protections for freedom of the press enshrined in the United States Constitution and the correlative provision (art. I, § 2, subd. (a)) of the California Constitution.

In Zerilli v. Smith (D.C.Cir. 1981) 656 F.2d 705, Judge J. Skelly Wright explained the importance of a reporter’s privilege to the fundamental values protected by the First Amendment. “The First Amendment,” he said, “guarantees a free press primarily because of the important role it can play as ‘a vital source of public information.’ Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.”

We cannot ignore or subordinate the First Amendment values furthered by the protection of confidential sources and information; at the same time, we must recognize the parallel importance of the policy favoring full disclosure of relevant evidence. When called upon to weigh the fundamental values arguing both for and against compelled disclosure, the overwhelming majority of courts have concluded that the question of a reporter’s privilege in civil cases must be decided on a case-by-case basis, with the trial court examining and balancing the asserted interests in light of the facts of the case before it. Thus, the courts conclude, there is neither an absolute duty to disclose nor an absolute privilege to withhold, but instead a qualified privilege against compelled disclosure which depends on the facts of each particular case. The only California case to address this question also concluded that a claim of privilege must be judged by balancing the asserted interests on a case-by-case basis.

We conclude that in a civil action a reporter, editor, or publisher has a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources. The scope of that privilege in each particular case will depend upon the consideration and weighing of a number of interrelated factors.

First, the scope of the privilege depends on the nature of the litigation and whether the reporter is a party. A second consideration is the relevance of the information sought to plaintiff’s cause of action. Third, virtually all cases agree that discovery should be denied unless the plaintiff has exhausted all alternative sources of obtaining the needed information. Fourth, the court should consider the importance of protecting confidentiality in the case at hand. Finally, the court may require the plaintiff to make a prima facie showing that the alleged defamatory statements are false before requiring disclosure.

In conclusion, the superior court in this case ordered extensive disclosure of sources and information on the ground that there was no reporter’s privilege in California. We have concluded that the basis for this ruling was erroneous; that the California courts should recognize a qualified reporter’s privilege, depending upon a balancing of the relevant considerations in each case.

 

Petition and assembly

Cal. Constitution Art. I sec. 3

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 3. (a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

(b) (1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. (2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer. (4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7. (5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records. (6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses. (7) In order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, as specified in paragraph (1), each local agency is hereby required to comply with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), and with any subsequent statutory enactment amending either act, enacting a successor act, or amending any successor act that contains findings demonstrating that the statutory enactment furthers the purposes of this section.