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Donation Solicitation
by Ron Davis

Wal-Mart Stores, Inc., has convinced California’s courts that it differs from traditional shopping centers with regard to curbing unwanted solicitation on Wal-Mart property. But the battle over the issue of solicitation has taken an unusual twist.

As in other states, Wal-Mart operates retail facilities in California in various business formats: discount stores, “supercenters,” and Sam’s Clubs. Such facilities are designed so their customers can use them strictly to purchase merchandise.

A challenge to Wal-Mart’s policy of limiting expressive activity on its properties came from the Missionary Church of the Disciples of Jesus Christ. Members of that church had stationed themselves outside various Wal-Mart stores in California to solicit money from Wal-Mart customers.

Wal-Mart does allow limited free expression and solicitation on its premises, but subject to written rules. Those rules regulate where, when, and how such activities may occur. Any interference with customers is prohibited.

Largely ignoring Wal-Mart’s rules, Missionary Church members stationed themselves outside selected stores, regularly stopping customers and sometimes annoying and harassing them while soliciting donations. Despite Wal-Mart’s numerous requests, members of the church refused to follow the expressive-activity policy.

Wal-Mart eventually sought and received from the courts a restraining order to stop Missionary Church members from solicitation activities on Wal-Mart property. That order prohibited church members from blocking Wal-Mart entrances and exits, standing closer than 15 feet from entrance and exit doors, and obstructing or interfering with any customer. The court also required the church to give advance notice of its activities and ruled that Wal-Mart could limit church solicitation to a maximum of three consecutive days and 14 days per store per calendar year.

In response, the Missionary Church countersued, hoping to stop Wal-Mart from excluding its members from engaging in expressive activities outside the company’s stores.

The church also used a different tactic in its attempt to use Wal-Mart property for solicitation purposes. Church members argued that Wal-Mart had engaged in “religious discrimination” by restricting their solicitation while permitting Salvation Army solicitation.

But a California court rejected that argument, explaining, “Wal-Mart stores, though open to the general public, are not intended to be used as public meeting places or for entertainment purposes, unlike traditional shopping centers. Although the Wal-Mart stores are large, attract large numbers of customers, and may be located within larger shopping areas, the stores are configured to allow the public to use the stores solely to purchase merchandise, and not for any other purpose.”

With regard to the Missionary Church contention of discrimination, the court stated, “Instead of challenging the constitutionality of Wal-Mart’s solicitation policy or claiming that Wal-Mart’s stores are public forums, the church now contends that Wal-Mart’s policy of allowing the Salvation Army to conduct its annual holiday drive at some of its stores violates the California Constitution. There is no favor of one religious outlook over another.... The way in which donations may be sought to help further missionary work and further those viewpoints are different, and that ultimately is the crux of the matter.” (In Re Donation Solicitation Cases, 2006 WL 16338864 [Cal.App.4 Dist.])

Decision: June 2006
Published: July 2006



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