Overlooked: The Right To Protest On Mall Property — Jan 3rd 2008

By Dakota Smith

Story of the Week: California Malls Are Flyer Friendly
Submitted By: Deidre

This week the California Supreme Court considered a case that essentially looked at whether a mall is considered private property, or a town square where protesters can gather.

The case stemmed from a 1998 incident at the Fashion Valley Mall in San Diego, during which union workers from The San Diego Union-Tribune distributed leaflets urging a boycott of the Robinsons-May department store. The protesters, who were unhappy that the store was among the paper's advertisers, were evicted from the premises about 15-20 minutes after arriving.

While the mall didn't outright ban demonstration, it had rules pertaining to "expressive" actions at its property, including applying for permits. Additionally, the mall outlawed any behavior that interfered with the business of its merchants.

The California Supreme Court Justice ruled 4-3 on the side of the protesters. In his summary, Justice Carlos R. Moreno, declared that "malls can enforce regulations on demonstrations to assure they don't interfere with normal business, but they can't block speech based on its content, such as calling for a store boycott."

The decision upheld a 1979 California Supreme Court ruling that defined shopping malls as the equivalent of public town squares. But last week's decision bucks a more recent nationwide trend of courts favoring property owners in free speech cases, according to the Los Angele Times. California "is out front" when it comes to free speech issues, according to Betsy Laird, senior vice-president in the Office of Global Public Policy at ICSC, a Washington, D.C-based trade organization for shopping centers. "The California constitution grants greater protections to freedom of speech than the US constitution does," Laird told Newsquake.

For her part, Laird said she didn't view this as a "wide-sweeping decision," given that the case centered around specific rules--for instance, the mall's requirement that groups obtain permits, which the protesters had bypassed. She also shrugged off larger implications the ruling may have, simply because she doesn't believe that most people think of malls as place to hold protests. "Shopping malls are in business for people to shop," she said. "The other activity is secondary."

One of the dissenters in the case, Justice Ming W. Chin, called the 1979 decision "ill conceived," according to the New York Times. "Justice Chin noted that in most states, there were no free-speech rights on private property," noted the paper.

But editorials in California newspapers applauded the move. "The justices were divided over whether private property rights should trump the opportunity for peaceful political activity," wrote the editorial board of the San Francisco Chronicle. "The judges got it right: Until they start requiring invitations or tickets at the door, shopping malls fit the definition of a public place."

The Los Angeles Times pondered the possible loopholes: "No sensible mall owner would allow employees of the Apple store to demonstrate for a boycott of the Microsoft store. Why should that privilege apply to visitors, who aren't even paying the rent on the place?" The paper ultimately applauded the court's "expansive speech protections" in its editorial pages.

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