Lane, In re

Decision Date20 August 1969
Docket NumberCr. 12829
CourtCalifornia Supreme Court
Parties, 457 P.2d 561, 72 L.R.R.M. (BNA) 2286 In re Donald Robert LANE on Habeas Corpus.

Duane B. Beeson, and Neyhart, Grodin & Beeson, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Derald E. Granberg and Timothy G. Laddish, Deputy Attys. Gen., for respondent.

BURKE, Justice.

In October 1967 petitioner was convicted in the Contra Costa County Municipal Court of two misdemeanors: violation of Concord Municipal Code sections 4147 1 (remaining on another's property after being notified by the owner to remove therefrom) and 4128 2 (distributing hand bills on premises of another without his consent). The Appellate Department of the Contra Costa Superior Court affirmed, and the Court of Appeal, First Appellate District, Division Two, denied habeas corpus without opinion. Petitioner then sought relief from this court, and we issued an order to show cause. Execution of judgment on conviction has been stayed pending our decision herein. As will appear, we have concluded that petitioner's activities were protected as an exercise of free speech.

Petitioner is an officer of a labor union which was involved in a labor dispute with one Lesher, publisher of certain newspapers. On June 17, 1967, petitioner appeared at the Calico Market, a large 'super-market-type' grocery store located on Monument Boulevard in Concord, for the purpose of distributing handbills urging customers not to patronize Calico Market because it advertised in newspapers published by Lesher, who was engaged in labor union disputes.

The Calico Market is an individual grocery store, owned and personally operated by one Stewart. It is not part of a chain and is not located in a shopping center. Stewart testified that he holds under lease the 24,000 square feet occupied by the store building 'and all of the (customer) parking area in front of the store for 150 feet extending to Monument Boulevard (a public street),' along which a public sidewalk runs. 3 A sidewalk some 10 feet wide runs along and adjacent to the front of the store; two doorways off of it serve as the customer entrances to the store building. The sidewalk is part of the privately owned property and is utilized only as a way between the parking lot and the store. Only the Calico Market is served by the parking area, which is accessible by two driveways from Monument Boulevard, and also by a direct route from the neighboring service station.

On the morning in question petitioner without the consent of owner Stewart stationed himself on the sidewalk just outside one of the doorway entrances to the store and commenced to distribute handbills. Petitioner did not block ingress or egress of customers, and did not speak to any customers except to thank them for taking a handbill. Stewart came out of the store and requested petitioner to leave the premises, pointed out that he could pass out the handbills on the public sidewalk adjacent to Monument Boulevard, and warned him that if he persisted on the store property Stewart would call the police. Petitioner stated he intended to pass out handbills all day long, Stewart then stepped between him and approaching customers, petitioner stepped around Stewart in order to reach the customers and in so doing pushed Stewart back in front of the customers, who were unable to enter the store, and Stewart 'grabbed' for the handbills, which fell to the ground. Stewart's son, who clerked in the store, thereupon emerged to assist his father and started to gather up the handbills. At this point one Lambert, a companion of petitioner, 'came running down the parking lot' and yelled 'That's all right, we've got the picture.' Next, the police arrived, explained to petitioner that his handbilling and remaining on the premises without Stewart's consent constituted misdemeanors, and when petitioner continued to do both, arrested him.

A week before this disturbance two persons passing out the same or similar handbills had been asked to leave the parking lot; one did so but the other continued his handbilling until the police arrived. Lambert, petitioner's associate, testified that because of this prior friction he accompanied petitioner to the market property to witness the disturbance he expected to result from further distribution at Calico, and to take photographs. 4 As an outgrowth of the disturbance which did occur battery charges were lodged against market owner Stewart. Similarly, petitioner was charged with and convicted of violation of the two Concord ordinances. (See ante, fns. 1, 2.)

It is established that peaceful picketing or handbilling 'carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment.' (Amalgamated Food Emp. U. Local 590 v. Logan Valley Plaza (1968), 391 U.S. 308, 313, 88 S.Ct. 1601, 1605, 20 L.Ed.2d 603 (3), and cases there cited.) Accordingly, petitioner had a right unquestionably under the free speech guaranties to distribute his handbills on the public sidewalk between Monument Boulevard and the parking lot of Calico Market, and the only constitutional question remaining is whether he had a similarly protected right to distribute them on the privately owned sidewalk areas opened by Calico for use by its customers as the sole means of ingress and egress to and from its store.

Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, involved distribution of religious literature on sidewalks of the 'business block' of a companyowned town, which the opinion relates was used by the residents 'as their regular shopping center.' The court states in Logan Valley, Supra (p. 317 of 391 U.S., pp. 1607--1608 of 88 S.Ct.), that in Marsh, for First Amendment purposes, it had treated such sidewalks as if they had been publicly held. Logan Valley concerned the validity of a state court decision enjoining union picketing on private property in front of one store in a privately owned shopping center designed to ultimately serve many business, but at the time serving only two stores. In reversing, the court noted that the typical suburban shopping center is 'a cluster of individual retail units on a single large privately owned tract' (p. 324 of 391 U.S., p. 1611 of 88 S.Ct.), and that in the Logan Valley shopping center 'the roadways provided for vehicular movement within the mall and the sidewalks leading from building to building are the functional equivalents of the streets and sidewalks of a normal municipal business district.' (P. 319 of 391 U.S., pp. 1608--1609.) The opinion explicitly points out the grounds and scope of the decision (p. 1609):

'All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' (citing Marsh), the State may not delegate (to the private owners) the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.

'We do not hold that respondents, and at their behest the State, are without power to make reasonable regulations governing the exercise of First Amendment rights on their property. Certainly their rights to make such regulations are at the very least co-extensive with the powers possessed by States and municipalities, and recognized in many opinions of this Court, to control the use of public property. Thus where property Is not ordinarily open to the public, this Court has held that access to it for the purpose of exercising First Amendment rights may be denied altogether.' (Italics added.)

At the end of the opinion in Logan Valley the court emphasized the adverse effect on First Amendment rights which would result if businesses were free to isolate themselves by the device of surrounding their stores by parking lots: 'Business enterprises located in downtown areas would be subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a Cordon sanitaire of parking lots around their stores. Neither precedent nor policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment.

'Therefore, as to the sufficiency of respondents' ownership of the Logan Valley Mall premises as the sole support of the injunction issued against petitioners, we simply repeat what was said in Marsh v. State of Alabama, 326 U.S. at 506, 66 S.Ct. at 278, 'Ownership does not always mean absolute...

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