3 Cal.3d 653, 29803, Diamond v. Bland

Docket Nº:29803
Citation:3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733
Opinion Judge:[11] Mosk
Party Name:Diamond v. Bland
Attorney:[7] Roger Jon Diamond, in pro. per., for Plaintiffs and Appellants. [8] A. L. Wirin, Fred Okrand and Laurence R. Sperber as Amici Curiae on behalf of Plaintiffs and Appellants. [9] Stanford D. Herlick, County Counsel, Paul A. Grube, Jr., Deputy County Counsel, Lonergan, Jordan & Gresham, Allen B....
Case Date:December 16, 1970
Court:Supreme Court of California

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3 Cal.3d 653

91 Cal.Rptr. 501, 477 P.2d 733

Roger Jon DIAMOND et al., Plaintiffs and Appellants,


Frank BLAND, as Sheriff, etc., et al., Defendants and Respondents.

L.A. 29803.

Supreme Court of California

Dec. 16, 1970.

In Bank

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[Copyrighted Material Omitted]

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Roger Jon Diamond, in pro. per., for plaintiffs and appellants.

A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, as amici curiae on behalf of plaintiffs and appellants.

Lonergan, Jordan & Gresham, Allen B. Gresham, San Bernardino, Stanford D. Herlick, County Counsel, Paul A. Grube, Jr., Deputy County Counsel, and Lawrence M. Cohen, Chicago, Ill., for defendants and respondents.

MOSK, Justice.

This appeal from a judgment denying preliminary and permanent injunctions entered in the Superior Court of San Bernardino County presents a constitutional question of first impression in this state: May the owners of a privately owned shopping center deny all use of their premises to persons who desire, on those premises, to engage in First Amendment activities unrelated to the business of the center?

Plaintiffs are People's Lobby, Inc., a nonprofit California corporation, which at the time of the incident giving rise to this litigation was engaged in securing signatures on two anti-pollution initiative petitions, Roger Jon Diamond, attorney for People's Lobby, and William Duxler, a volunteer working for People's Lobby in its initiative campaign. Defendants are Homart Development Company which owns a shopping center in the City of San Bernardino called the Inland Center (Center), the security guard and manager of the Center, the Sheriff and District Attorney of San Bernardino County, and the Mayor and Chief of Police of the City of San Bernardino.

The Inland Center is located in a nonresidential area on wedge-shaped property bounded by an interstate highway, a commercial street, and a flood control channel. The Center consists of a large parking lot and a totally covered, air-conditioned shopping complex or mall which contains three major department stores--Sears, The Broadway, and The May Company--and 72 single businesses. All of the stores have an unobstructed frontage on the covered 'common aisleway.' The mall area is surrounded by a six to eight-foot wide sidewalk which is adjacent to the parking lot.

The covered mall area is open to the public during business hours by means of entry through unlocked doors. Prospective customers are encouraged to visit the mall, which features piped-in music, benches, attractive

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32-foot wide common aisleways, and occasional business promotions and displays. No admission is charged for entry to the mall area and no purchases are required as a condition to entry. On the average, 25,000 persons visit the Center every day, coming from a market area of one million people living in places as far from the Center as 75 miles. The Inland Center is the largest shopping center in San Bernardino County.

Under Homart's regulations, all activity apart from regulated, mutually beneficial business promotions and displays, whether by tenants or strangers, is forbidden on the premises of the Center. The policy is intended to avoid any possible congestion or disturbance which might interfere with amiable shopping by customers, and it is applied without discrimination to all varieties of charitable, religious, fraternal, social, and political groups that seek to use the Center's property for any forms of solicitation or discussion.

On October 28 and 29, 1969, representatives of People's Lobby, Inc. requested permission to gather signatures for an initiative petition and to disseminate information in connection therewith on the Center premises. Specifically, Homart was asked to permit plaintiffs to set up a card table in the mall area or on the uncovered sidewalk for the purpose of gathering signatures and distributing leaflets. Plaintiffs assured Homart that their activities would be orderly and would result in no obstruction of normal Center activities. The requests were denied.

On October 30, 1969, two representatives of the People's Lobby, accompanied by a photographer and a newspaper reporter, entered the Center, set up a card table in the mall area, and proceeded to solicit signatures on the petition, collect donations, and distribute literature. Within a few minutes, the Center's security officer approached and demanded that they cease their activities and leave the Center. They complied by moving their table from the mall area to the exterior sidewalk. Again they were ordered to leave, and they did.

The entire occurrence lasted about half an hour during which time numerous persons signed the petitions. There was no disturbance or disruption of the activities of the Center and no departure from the norm of the mall, other than the existence of the table and the gathering of persons around it to sign the petitions, receive related literature, and contribute to the antipollution campaign. The trial court found only that the 'use sought involved Potential obstruction and interference with the use of the property.' (Italics added.)

No arrests were made as a result of the incident and the representatives of People's Lobby left the Center after the security officer's second demand that they do so. However, all parties agreed that, if plaintiffs had not complied

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with the security officer's demand, police assistance would have been requested. The chief of police testified that he would have removed persons from the Center at the request of Homart if they were in violation of any city ordinance or state statute defining trespass. Penal Code section 602, subdivision (l), defines trespass to include '(e)ntering and occupying real property or structures of any kind without the consent of the owner, his agent, or the person in lawful possession thereof.' Therefore, the issues raised by the instant case do not differ substantially from those that would have been involved had plaintiffs been arrested upon refusal to leave the Center.

On November 5, 1969, plaintiffs filed a complaint for injunctive and declaratory relief, alleging that defendants' refusal to permit them to use the Inland Center premises to solicit signatures on their initiative petitions and disseminate information in connection therewith was in violation of their constitutional rights under the First and Fourteenth Amendments. The trial court denied a request for a temporary restraining order and, after a hearing, judgment was entered denying preliminary and permanent injunctions.

At the outset, we face a threshold question of mootness. January 26, 1970, was the original deadline for the securing of signatures on plaintiffs' initiative petitions in time for the 1970 election, and, therefore, it might appear at first blush that the case is now moot. However, in briefs both plaintiffs and defendants urge that the case should not be considered moot because of the likelihood of recurrence of conflict between the parties regarding the rights of plaintiffs and others to engage in free speech activities on the property of the Center. (See Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1; Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21.) In addition, plaintiffs have filed a new petition with the Secretary of State and have announced resumption of a campaign to qualify an initiative measure for the next state election. Therefore, we find the matter is not moot.

Turning to the merits, it is plaintiffs' contention that applicable case precedent interpreting the First Amendment precludes defendants from absolutely prohibiting on shopping center premises speech activities which may not be absolutely barred from the public streets and parks. We conclude that prevailing authority compels our rejection of the proposition that owners of a shopping center may impose blanket and total prohibition on the exercise of First Amendment activities on shopping center property.

We start from the premise that peaceful and orderly solicitation of signatures, discussion of issues, and distribution of information are First

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Amendment protected activities which may not be prohibited broadly and absolutely on public streets, parks, and similar public places traditionally associated with the exercise of First Amendment rights. (See Amalgamated Food Employees, etc. v. Logan Val. Plaza (1968) 391 U.S. 308, 313, 315, 88 S.Ct. 1601, 20 L.Ed.2d 603; Hague v. C.I.O. (1939) 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.) We must decide whether the Inland Center, because of its private ownership, may insulate itself from such protected activities.

In Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, the United States Supreme Court determined that the owners of a company town could not prevent the exercise of First Amendment rights on privately owned streets in the business district; therefore, it was held that a member of Jehovah's Witnesses could not be absolutely prohibited from distributing religious literature on the streets of the town. The court recognized that under some circumstances property that is privately owned may be treated as though it were publicly held, at least for First Amendment purposes: 'Ownership does not always mean absolute dominion. The 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. * * * Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. * * *

'Many people in the United States live in company-owned towns. * * * There is no more reason for depriving these people of...

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