Private Shopping Malls – The “Not-So-Private” Private Property
Nov 15, 2014
Private Shopping Malls – The “Not-So-Private” Private Property
Agenda
General Overview of the Issues
Relevant Case Law
Common Legal Challenges to Rules
Key Elements of Allen Matkins’ Rules
Litigation and Enforcement Tips
Protesters have become increasingly active at private shopping centers
Unions
Organizations supporting specific rights (i.e., pro-life, animal rights)
Religious groups
Solicitation of funds
Political organizations & causes
Protest activities at shopping centers can be disruptive to business
Picketing
Shouting
Chanting
Displaying disturbing images
Using inflatable objects
Approaching shoppers
Passing out fliers
Seeking signatures
Free-speech rights in the U.S. Constitution
“Congress shall make no law …abridging the freedom of speech…”
Free-speech rights in the California Constitution
“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
Free speech rights under California Constitution have been broadly interpreted, at the expense of private property rights
U.S. Constitution: right of free speech has limited applicability to private shopping centers
State Constitutions: may grant broader free speech rights than the US Constitution
California courts have expanded free speech rights at private shopping centers
Free speech rights may trump private property rights if the property can be characterized as a “public space”
Legal ArgumentsOwner invites public onto property and surrenders a level of controlShopping centers serve a role tantamount to public space
Public Policy Arguments
Suburban growth has changed how we organize cities and create public spaces
Private shopping centers have replaced downtowns as the public gathering places
General Overview of California Case Law
Over the past 30 years, California courts have significantly expanded free speech rights at the expense of private property rights
Cases can be broken into three periods:
– Early cases before Robins v. Pruneyard (1979)
– Cases after Robins v. Pruneyard
– Cases after Fashion Valley (2007)
This expansion is contrary to almost every other state
Early Cases Before Robins v. Pruneyard
Marsh v. State of Alabama, 326 U.S. 501 (1945)– Company town served as a public forum– Free speech rights trumped private property rights
Lloyd Corp v. Tanner, 407 U.S. 551 (1972)– War protesters not allowed to leaflet within an indoor mall
Significance of Robins v. Pruneyard 23 Cal.3d 899 (1979)
Free speech rights may trump private property rights
Reasonable time, place and manner restrictions may be imposed by shopping center owners
First sea change in California law related to free speech rights at private shopping centers
Levels of judicial scrutiny depend upon type of speech
For any content-based speech restriction, it's subject to strict scrutiny, requiring that it be:
i. narrowly drawn, and
ii. necessary to serve a compelling interest
For any content-neutral speech restriction, it must satisfy intermediate scrutiny, requiring that it be:
iii. narrowly tailored
iv. serve a significant government interest, and
v. leave open ample alternative avenues of communication
Cases after Robins v. Pruneyard
H-CHH Associates v. Citizens for Representative Government, 193 Cal.App.3d 1193 (1987)
– Case highlights what shopping center rules should not do
– Court held in favor of petitioners, detailing specific reasons as to why the mall’s rules were and were not constitutional
Needletrades Union v. Superior Court, 56 Cal.App. 4th 996 (1997)
– High-water mark for shopping center owners
– Court held that rules are constitutional, specifically those for (1) application requirement, (2) protest materials restriction, and (3) time and place restrictions on activities
Fashion Valley Mall v. NLRB 42 Cal. 4th 850 (2007)
Mall rule prohibited any leafleting targeting its tenants
The Court ruled in favor of union leafletters, holding that the mall’s rule was illegal because it was a content-based restriction that did not survive strict scrutiny
Second sea change in California law related to free speech rights at private shopping centers
Cases After Fashion ValleyUnited Brotherhood of Carpenters v. National Labor Relations Board, 540 F.3d 957 (2008)
– Court ruled in favor of union leafleters– Limited six standard types of rules used at shopping centers
Matthew Snatchko v. Westfield, 187 Cal.App.4th 469 (2010)
– Court ruled in favor of a pastor discussing religion with strangers
– No content-based restrictions
Best Friends Animal Society v. Macerich, 193 Cal.App.4th 168 (2011)
– Court ruled in favor of protesters opposing a pet store
– Shopping center rules cannot expressly favor certain types of speech
Common legal challenges to rules
Content: restriction based on content of speech Avoid any type of content-based restriction (strict scrutiny)
Location: activities limited to certain areas Allow protesters to locate within a safe distance of their target
Display type: restrictions on types of displays Use restrictions tied to violations of law
Time: access restricted on certain days of the year Avoid complete bans
Landlords may end up fighting a two-front battle…Protesters vs. Owners
Protesters may file suit against owners alleging violations of their free speech rights
Courts and law enforcement have sided with free speech
Tenants vs. Owners
Tenants may file suit against landlords for failing to protect their leasehold rights by allowing protests
Owners, as landlords, have contractual obligations to tenants, such as the covenant of quiet enjoyment
SOLUTION:ALLEN MATKINS MODEL
TIME/PLACE/MANNER POLICY
What is the Allen Matkins Model Time/Place/Manner Policy?Model rules that landlords can use to impose reasonable restrictions on the time, place and manner of non-commercial expressive activity
Rules have been crafted to comport with California law
Designed to provide the greatest level of protection to shopping center owners
Rules must be customized for the particular site/circumstances
Disruptive or non-conforming protests may be legally restricted
• Blocking entrances or exits• Harassing customers – Physical not permitted, verbal statements have wide
latitude, except imminent threats• Property damage• Disorderly conduct
FightsWeaponsExcessive capacity/hazardsPotter Stewart Test
• Offensive verbal statements are likely permitted
The law is tilted in favor of speech rights but the landlord has some remediesInjunction
Most common remedy, yet difficult to obtain given First Amendment protections
Court will balance likelihood of success with likelihood of harm
Must be no more restrictive than necessary to ensure conformance with law or proper TPM restrictions
Must be content neutral
Temporary Restraining Order (TRO)
Can be obtained on emergency basis if necessary
Followed by preliminary and/or permanent injunction
“Damages” is another legal option for landlordsTheories
– Trespass Theory – Beyond allowed purpose– Nuisance Theory– Intentional Torts
Can be pursued after, in lieu of, or in conjunction with injunction remedy
Collectability will be a concern– Association can be sued but assets may be limited– Individual protesters may not be identifiable Expect strong resistance
Anti-SLAPP law creates numerous obstacles
Practical considerations
Use judgment – No “one size fits all” remedy
Identify and discuss with group leader– Look for resolution that satisfies immediate needs
Contact police– Especially for disruptive or dangerous situations
Consider legal options– Legal options are slower, even “emergency”
relief may take several days to obtain– Police will enforce injunction if necessary
Closely document improper activity– Photos, videos may be necessary evidence
We recommend that the landlord post signs at shopping centers
We recommend that the landlord post signs at shopping centers
Contact
Matthew MarinoPartnerAllen Matkins Leck Gamble Mallory & Natsis [email protected]
Jonathan LorenzenAssociateAllen Matkins Leck Gamble Mallory & Natsis [email protected]
Sean SouthardPartnerAllen Matkins Leck Gamble Mallory & Natsis [email protected]