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by Ron Davis

Three major retailers with locations at California shopping centers have won a major skirmish in the legal battle over the barring of unwanted solicitation from their properties.

The retailers are Target Corporation, Wal-Mart Stores, Inc., and Home Depot U.S.A., Inc. And they have convinced the courts of that state that as individual operations, their stores distinguish themselves from the shopping centers where they do business.

California is a state whose Supreme Court decided that its constitution “protects speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” Individuals gathering signatures for forthcoming California elections therefore believed they had a right to station themselves at the major entrances of those three retailers’ shopping center stores. Then when the stores’ personnel demanded that they leave the premises, they sued.

At trial, the group pointed out that the three retailers attracted customers to their stores with such “public forum” enticements as restaurants, cafeterias, video arcades, and “aprons” in front of the stores as sales extensions. The group also offered the testimony of an urban-planning expert, who concluded that the three retailers “operate stores in shopping centers and malls which have replaced the traditional public forums and effectively act as community centers and nodal points for their surrounding communities.”

The three retailers countered that such testimony focused on the public nature of shopping centers as a whole as opposed to the particular stores located at those shopping centers.

A California court agreed with the retailers, explaining, “The shopping centers themselves may contain plazas, courtyards, and common areas, but there is no evidence that these [three retailers’] store entrances, aprons and perimeters consist of plazas, courtyards, walkways and entertainment or dining venues. In fact, the opposite is true in the sense that the aprons and perimeters of these establishments have become, in many instances, an extension of the store itself.”

The court therefore concluded “that the societal interest in using such stores as forums for exercising free speech and petitioning activities does not outweigh the retailers’ interests in exercising exclusive control over the use of their private property.”

The group appealed that decision, arguing that a question exists as to whether its members were in fact gathering signatures on the retailers’ property rather than the shopping center property.

A California appellate court, in agreeing with the lower court, pointed out that “undisputed evidence demonstrated the private nature of the property on which the solicitors sought to gather signatures. Evidence further showed that the entrance area of the retailers’ stores did not function as a public forum where the solicitors would be entitled to engage in expressive activities.” (Van v. Home Depot U.S.A., Inc., 2007 WL 2600816 [Cal.App. 2 Dist.])

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