The One Sentence Summary: The California Constitution does not protect expressive activity in the area immediately surrounding the entrance of an individual retail store that does not itself possess the characteristics of a public form, even when the store is part of a larger shopping center.
What They Were Fighting About:
Plaintiffs, on behalf of a class of individuals who gather voter signatures for initiatives, referenda and recalls, and register voters, filed suit against defendants Target, Wal-Mart and Home Depot, based on the stores’ refusal to allow plaintiffs to collect signatures in the area outside the stores’ entrances. Plaintiffs alleged causes of action for violation of the right to free speech, violation of Civil Code sections 51 and 52, violation of Business & Professions Code section 17200 and declaratory relief, and sought damages and equitable and injunctive relief. Plaintiffs conceded that their action was directed only at defendants’ stores located in larger shopping centers (not stand-alone stores) and argued that these centers were public fora where expressive activity was allowed. The trial court granted summary judgment to defendants on the ground the defendants’ store entrances, aprons and perimeters were not public fora but were an extension of the store itself, and therefore the societal interest in using the stores for expressive activity did not outweigh the defendants’ interests in controlling the use of their private property. On appeal, plaintiffs argued that the trial court made two errors in granting summary judgment: first, triable issues of fact existed as to whether plaintiffs were gathering signatures on defendants’ private property (as opposed to the shopping center’s property); and second, the trial court erroneously concluded that the area in front of defendants’ stores was not a public forum.
Court Holdings: The Court of Appeal affirmed the judgment on the trial court’s order granting summary judgment and held:
- The undisputed evidence established that the areas where plaintiffs were gathering signatures were private property and that defendants controlled the areas by using them to sell merchandise. The court also rejected plaintiffs’ argument, raised for the first time at the summary judgment hearing, that some of the apron areas actually were owned by the shopping centers and should therefore be considered public fora like a shopping center common area because the argument was inconsistent with plaintiffs’ complaint, which alleged that defendants owned the areas in question.
- The apron and perimeter area of defendants’ stores were not a public forum under the balancing test established by the California Supreme Court in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, affd. sub nom., Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 (“Pruneyard“). Pruneyard held that the California Constitution protects expressive activity in the common areas of a large, privately owned shopping center based on a balancing of the competing interests of the private property owner with society’s interest in using the private property as a forum for the expressive activity. Courts applying the balancing test look at whether the private property serves as the functional equivalent of a public forum, considering (1) the nature, purpose and primary use of the property; (2) the extent and nature of the public invitation to use the property; and (3) the relationship between the ideas sought to be presented and the purpose of the property’s occupants. In this case, the nature, purpose and primary use of the property were not designed to encourage patrons to spend time together or be entertained; the extent and nature of the public invitation to use the property was designed to encourage shopping, not congregating; and there was no relationship between the ideas sought to be presented and the purpose of the property’s occupants.
- The court rejected plaintiffs’ argument that the location of some of defendants’ stores as “anchors” in large Pruneyard-type shopping centers bestowed a public nature on the stores’ apron and perimeter areas, and declined to extend the Pruneyard holding to the entrance and exit area of an individual retail establishment in a larger shopping center. The undisputed evidence showed that the apron and perimeter areas of defendants’ stores lacked any public forum attributes and the trial court therefore properly concluded that any societal interest in using the area as a forum for expressive activity did not outweigh defendants’ interest in maintaining control over the use of their stores.