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 LLPmmarino@allenmatkins.com

Jonathan LorenzenAssociateAllen Matkins Leck Gamble Mallory & Natsis LLPjlorenzen@allenmatkins.com

Sean SouthardPartnerAllen Matkins Leck Gamble Mallory & Natsis LLPssouthard@allenmatkins.com