Rights of Shopping Center Owners To Regulate Free Speech and Public DiscourseOctober 2011 – Newsletters In the Zone
States generally protect the rights of private property owners to enact regulations governing political protests, demonstrations and similar activities on their properties. One notable exception is in the State of California, which has generally granted broad constitutional protections to individuals and groups to enter on shopping centers for such activities since the decision of the U.S. Supreme Court in Robins v. Pruneyard in 1980. In the Pruneyard case, local high school students set up a table in the courtyard of the Pruneyard Shopping Center in Campbell, California, seeking to solicit support for their opposition to a U.N. resolution. A security guard at the shopping center advised the students that their activities violated the shopping center’s policy against publicly expressive activity and asked the students to leave. The students brought an action in the California Superior Court seeking an injunction prohibiting the owner from denying them access to the shopping center. The California Superior Court held the students did not have either a federal or state constitutional right to exercise their asserted rights on the shopping center property. The California Court of Appeals affirmed the Superior Court’s decision, but the California Supreme Court reversed the decision of the California Court of Appeals finding that the provisions of the California constitution permitted the students to exercise their activities as the shopping center. On appeal, the U.S. Supreme Court affirmed the decision of the California Supreme Court and held that the exercise of the rights of free expression did not constitute a taking under the Fifth Amendment and did not constitute a denial of the owner’s property without due process of law under the Fourteenth Amendment.
The Pruneyard case followed a line of cases beginning in 1946 that saw the pendulum swing from favoring protecting the rights of individuals or groups to protecting the rights of shopping center owners. In Marsh v. Alabama, decided in 1946, the defendant was convicted in Alabama state court of trespass for remaining on the business district of a “company-owned town” to distribute religious literature after being warned to leave. The defendant claimed the conviction violated her First and Fourteenth Amendment rights. On appeal, the U.S. Supreme Court reversed the state court and held the state could not impose criminal punishment for distributing religious literature and the state statute violated the rights granted by the First and Fourteenth Amendments of the U.S. Constitution. In rendering its decision, the U.S. Supreme Court stated “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”
More than 20 years later, in 1968, in Amalgamated Food Employees Union Local 590 et al. v. Logan Valley Plaza, Inc.,a Pennsylvania state court granted an injunction prohibiting union members from picketing a supermarket in a shopping center on the basis that the union’s conduct constituted a trespass on the property of the supermarket and the shopping center. However, the U.S. Supreme Court, following the rationale in Marsh v. Alabama, reversed the state court’s decision and held that since the shopping center was freely accessible and open to the public, the state could not use its trespass laws to exclude members of the public wishing to exercise their First Amendment rights. The opinion of the U.S. Supreme Court noted that circumstances might exist where reasonable regulations governing the exercise of First Amendment rights might be warranted, such as where the property is not ordinarily open to the public, where the exercise of First Amendment rights would unduly interfere with the normal use of the property by other members of the public, etc. The U.S. Supreme Court reserved judgment as to the right to prohibit such protests if unrelated to the operations of the shopping center.
Just four years later, in 1972, the U.S. Supreme Court decided Lloyd Corp., Ltd. v. Tanner et al. In this case, the shopping center owner sought to prevent protesters from distributing hand bills protesting the Vietnam War in keeping with its strict policy prohibiting handbilling. The district court (following the decisions in Marsh v. Alabama and Amalgamated Food Employees Union Local 590 et al. v. Logan Valley Plaza, Inc.) found that since the shopping center was generally open to the public, it was the equivalent of a public business district and the prohibition against distributing hand bills violated the protesters’ First Amendment rights. The district court issued an injunction restraining the shopping center owner from interfering with such rights. The U.S. Court of Appeals for the Ninth Circuit upheld the district court’s ruling. The shopping center owner appealed to the U.S. Supreme Court claiming the court’s decision violated its private property rights protected by the First and Fifth Amendments. The U.S. Supreme Court reversed the decision of the lower courts and vacated the injunction on the grounds that the activity in this case was not related to the shopping center’s operations.
In 1976, the U.S. Supreme Court decided Hudgens v. National Labor Relations Board. In this case, striking warehouse employees picketed their employer’s retail store in a privately owned shopping center. The owner threatened to have the striking employees arrested for trespass if they continued to picket. The union then filed an unfair labor practice charge against the owner with the National Labor Relations Board. Relying on the Logan Valley Plaza case, the NLRB issued a cease and desist order against the owner. The case was appealed to the U.S. Court of Appeals for the Fifth Circuit, which remanded the case back to the NLRB in light of the U.S. Supreme Court’s decision in the Lloyd Corp. case. The U.S. Supreme Court overruled the circuit court’s order and held the striking union members did not have a First Amendment right to enter the mall for the purpose of picketing. The U.S. Supreme Court stated “that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case.” This case essentially overruled the Logan Valley case, and the pendulum began to swing back in favor of shopping center owners.
Fortunately, there is good news for shopping center owners in most states. Except for California, which still follows the rationale set forth in the Pruneyard case, and several other states such as New Jersey, Massachusetts and Colorado, which have adopted versions of the Pruneyard rationale, the majority of state court decisions since Pruneyard have protected the rights of private property owners to enact regulations governing political protests, demonstrations and similar activities at their shopping centers and have held that individuals and groups do not have the unfettered right to enter private property for the purpose of picketing, demonstrating or conducting similar types of activities. However, shopping center owners will likely be confronted with individuals or groups seeking to picket, demonstrate or undertake similar types of activities on their properties from time to time. What is a shopping center owner to do when faced with such situations? Some suggestions are for shopping center owners to implement a consistent policy against picketing, demonstrating or similar types of activities; to enforce the policies in a consistent, nondiscriminatory manner; and to post signs around the shopping center stating the opinions of any such individuals or groups gathering on the shopping center are not shared by the shopping center owner.
For more information, please contact Craig L. Finger at 215.299.2717 or [email protected].