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Free Speech Lives Shopping Center
by Ron Davis

California is again the battleground in the dispute between privately owned shopping centers and patrons who demand free-speech rights on center property.

The latest dispute involves a young pastor hoping for opportunities to share his Christian faith. To do so, he had gone to the Galleria in Roseville, a large regional mall located in suburban Sacramento. While in the common area there, he approached three young women and asked them if they would willingly talk to them.

After apparently receiving their consent, he began discussing the principles of his faith. He did not distribute any literature, raise his voice, ask for donations, nor block pedestrian traffic.

A nearby store employee nevertheless summoned mall security. A senior security officer responded and ordered the young pastor to leave the premises. And when the pastor refused the order, the security officer handcuffed him, took him to the security office, and then turned him over to local police officers. They in turn booked him, but released him. All charges against him were dismissed.

The pastor later sued the center’s owners, claiming false arrest, assault, battery, intentional infliction of emotional distress, malicious prosecution, and violation of civil rights. His complaint stated that the owners make the mall “inaccessible to persons who, as part of their religious conduct and expression, exercise their rights of free speech and faith by conversationally speaking with other persons within the Galleria on issues of faith.”

In response, the owners contended that they lawfully adopted and enforce reasonable time, place, and manner rules governing noncommercial expressive activities at the shopping center. Those rules require anyone wanting to use the mall for such activities to make application. After review of the application, center management then determines the value of the activity to center patrons. If the application passes that test, the applicant must confine the activity to an assigned area in one of three designated spots within the shopping center.

California’s free-speech right is actually broader and more protective than is the free-speech right granted by the U.S. Constitution. California, for example, has in previous legal cases granted “the reasonable exercise of the right of free speech in a privately owned shopping center.” The U.S. Constitution’s First Amendment does not guarantee that right.

The shopping center argues, however, that it has a compelling interest “in protecting itself and its tenants from commercial use of the common areas by third parties who do not pay rent for the use of any part of the center.” Moreover, the center adds, its rules promote safety through the avoidance of fire-code violations and the disruption and congestion that could result from “unregulated expressive activities.”

A California court agreed that the shopping center’s rules are reasonable time, place, and manner restrictions that are “content neutral.” The shopping center appealed that decision.

A California appellate court reversed the lower-court ruling, explaining, “The prohibition or restriction of noncommercial speech unrelated to the mall cannot be justified simply because it might interfere with the merchandising interests of the mall and its tenants…. Moreover, by prohibiting or restricting all speech between strangers on topics that are not related to the activities of the mall, its tenants or their sponsored activities, the rules not only prohibit strangers from consensually engaging in peaceful political or religious discussions, they also prohibit even casual conversation between teenagers who go to the mall to meet, socialize, and talk with other teenagers. Spur-of-the-moment conversations between strangers who go to the mall to exercise in the common areas are banned. The rules forbid strangers to converse in order to while away the time as their spouses shop. Under the language of the rules, strangers could not choose to engage in impromptu chit-chat while they stand in a check-out line in a common area.”

(Snatchko v. Westfield LLC, 2010 WL 3156628 [Cal.App. 3 Dist.])

Decision: August 2010
Published: October 2010



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