23 Cal.3d 899, 23812, Robins v. Pruneyard Shopping Center

Docket Nº:23812
Citation:23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341
Opinion Judge:[13] Newman
Party Name:Robins v. Pruneyard Shopping Center
Attorney:[7] Morgan, Beauzay, Hammer, Ezgar, Bledsoe & Rucka, Philip L. Hammer and Matthew J. McAlerney for Plaintiffs and Appellants. [8] Roger Jon Diamond, Hecht, Diamond & Greenfield, Susan L. Paulus, Susan M. Popik, Pettit & Martin, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, J. Albert Wol...
Case Date:March 30, 1979
Court:Supreme Court of California

Page 899

23 Cal.3d 899

153 Cal.Rptr. 854, 592 P.2d 341

Michael ROBINS, a minor, etc., et al., Plaintiffs and Appellants,


PRUNEYARD SHOPPING CENTER et al., Defendants and Respondents.

S.F. 23812.

Supreme Court of California.

March 30, 1979.

Rehearing Denied May 24, 1979.

Page 900

[Copyrighted Material Omitted]

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Morgan, Beauzay, Hammer, Ezgar, Bledsoe & Rucka, Philip L. Hammer and Matthew J. McAlerney, San Jose, for plaintiffs and appellants.

Roger Jon Diamond, Hecht, Diamond & Greenfield, Pacific Palisades, Susan L. Paulus, Susan M. Popik, Pettit & Martin, Margaret C. Crosby, San Francisco, Alan L. Schlosser, Amitai Schwartz, San Francisco, J. Albert Woll, Marsha S. Berzon, Laurence Gold, Jerry Williams, Washington, D. C., Fred H. Altshuler and Stephen P. Berzon, San Francisco, amici curiae for plaintiffs and appellants.

Ruffo, Ferrari & McNeil, Thomas P. O'Donnell and Bradford C. O'Brien, San Jose, for defendants and respondents.

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Moless & Brinton, Joseph H. Moless, Jr., Santa Clara, Adrian A. Kragen, Lawrence M. Cohen, Martin K. Denis and Fox & Grove, Chicago, Ill., amici curiae for defendants and respondents.

Daniel H. Lowenstein, Robert M. Stern, Natalie E. West, Lee C. Rosenthal, Sacramento, Joseph Remcho and Rosen, Remcho & Henderson, San Francisco, amici curiae.

NEWMAN, Justice.

In this appeal from a judgment denying an injunction we hold that the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution.

Pruneyard Shopping Center is a privately owned center that consists of approximately 21 acres 5 devoted to parking and 16 occupied by walkways, plazas, and buildings that contain 65 shops, 10 restaurants, and a cinema. The public is invited to visit for the purpose of patronizing the many businesses. Pruneyard's policy is not to permit any tenant or visitor to engage in publicly expressive activity, including the circulating of petitions, that is not directly related to the commercial purposes. The policy seems to have been strictly and disinterestedly enforced.

Appellants are high school students who attempted one Saturday afternoon to solicit support for their opposition to a United Nations resolution against "Zionism." They set up a cardtable in a corner of Pruneyard's central courtyard and sought to discuss their concerns with shoppers and to solicit signatures for a petition to be sent to the White House in Washington. Their activity was peaceful and apparently well-received by Pruneyard patrons.

Soon after they had begun their soliciting they were approached by a security guard who informed them that their conduct violated Pruneyard regulations. They spoke to the guard's superior, who informed them they would have to leave because they did not have permission to solicit. The officers suggested that appellants continue their activities on the public sidewalk at the center's perimeter. 1

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Appellants immediately left the premises and later brought suit. The trial court rejected their request that Pruneyard be enjoined from denying them access.

Our main questions are: (1) Did Lloyd v. Tanner (1972) 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 recognize federally protected property rights of such a nature that we now are barred from ruling that the California Constitution creates broader speech rights as to private property than does the federal Constitution. (2) If not, does the California Constitution protect speech and petitioning at shopping centers?

This court last faced those issues in Diamond v. Bland (1974) 11 Cal.3d 331, 113 Cal.Rptr. 468 (Diamond II ), wherein Diamond v. Bland (1970) 3 Cal.3d 653, 91 Cal.Rptr. 501 (Diamond I ) was reversed because of Lloyd v. Tanner, supra. The Diamond cases involved facts much like those of the instant case. Diamond II stated: "Lloyd 's rationale is controlling here. In this case, as in Lloyd, plaintiffs have alternative, effective channels of communication, for the customers and employees of the center may be solicited on any public sidewalks, parks and streets adjacent to the Center and in the communities in which such persons reside." (11 Cal.3d at p. 335, 113 Cal.Rptr. at p. 471, 521 P.2d at p. 463.)

The opinion articulating that conclusion did not examine the liberty of speech clauses of the California Constitution. A footnote suggested that such an inquiry was barred by federal and state supremacy clauses 2 because "(u) nder the holding of the Lloyd case, the due process clause of the United States Constitution protects the property interests of the shopping center owner from infringement (407 U.S. at pp. 552-553, 567, 570, 92 S.Ct. 2219)." (11 Cal.3d at p. 335, fn. 4, 113 Cal.Rptr. at p. 471 n.4, 521 P.2d at p. 463 n.4.)

Respondents contend that Diamond II was correctly decided and controls this case. They argue that Lloyd did more than define parameters of First Amendment free speech, that it recognized identifiable property rights under the Fifth and Fourteenth Amendments. They acknowledge that states are free to establish greater rights under their constitutions

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than those guaranteed by the federal Constitution. They contend however that, since a ruling that petitioners' activity here was protected by the California Constitution would diminish respondents' property rights under Lloyd, we may not so rule.

Appellants argue that Lloyd merely defined federal speech rights and did not prescribe federal property rights. Even if it did prescribe such rights, appellants contend that, since states generally may regulate shopping centers for proper state purposes, California is free to impose public-interest restrictions on the centers in order to safeguard the right of petition. That right, they assert, surely reflects a public interest that equals in importance the interests that justify restrictions designed to ensure health and safety, a natural environment, aesthetics, property values, and other accepted goals. Such restrictions on property routinely are enacted or declared and enforced.

Appellants ask us to overrule Diamond II and to hold that the California Constitution does guarantee the right to seek signatures at shopping centers.


Lloyd held that a shopping center owner could prohibit distribution of leaflets when they communicated no information relating to the center's business and when there was an adequate, alternate means of communication. The court stated, "We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights." (407 U.S. at p. 570, 92 S.Ct. at p. 2229.)

Appellants correctly assert that Lloyd is primarily a First Amendment case. The references to Fifth and Fourteenth Amendment rights were made specifically in connection with the court's discussion of state action requirements. The court was focusing on Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, which held that a property owner's actions in some circumstances are equivalent to state action because of public functions performed by the property. The court in Lloyd examined the functions performed by Lloyd's center but did not purport to define the nature or scope of Fifth and Fourteenth Amendment rights of shopping center owners generally.

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Subsequent decisions support that reading of Lloyd. In Hudgens v. NLRB (1976) 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 the court again considered First Amendment rights in relation to private property. Though it concluded that the First Amendment did not protect picketing in a shopping center, it acknowledged that "statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others . . . ." (Id. p. 513, 96 S.Ct. at p. 1033.) The court's conclusion that the National Labor Relations Act controlled the issues there presented indicates that Lloyd by no means created any property right immune from regulation.

Eastex, Inc. v. NLRB (1978) 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 is comparable. The employees sought to distribute a four-part union newsletter. Two parts involved organizational requests; the other parts were irrelevant to the relations between employer and union. 3 A dissent by Justice Rehnquist, joined by Chief Justice Burger, states that property rights "explicitly protected from federal interference by the Fifth Amendment to the Constitution" were involved in the controversy. Rejecting that view, the majority had little difficulty recognizing that, as noted in Hudgens, supra, 424 U.S. at page 513, 96 S.Ct. 1029, the National Labor Relations Act could provide statutory protection for the activity involved. The court observed that prior cases established that the act assures a right to distribute organizational literature on an employer's premises because employees already are rightfully there, to perform the duties of their employment. (See Republic Aviations Corp. v. NLRB (1945) 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372.) The court concluded, "Even if the mere distribution by employees of material . . . can be said to intrude on petitioner's property rights in any meaningful sense, the degree of intrusion does not vary with the content of the material." (Eastex, supra, 437 U.S. 573, 98 S.Ct. 2516.)


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