Eastwood Mall, Inc. v. Slanco

• Decision Date: 09 February 1994
• Docket Number: No. 91-2200,91-2200
• Citation: 626 N.E.2d 59,68 Ohio St.3d 221
• Parties: EASTWOOD MALL, INC. et al., Appellees, v. SLANCO, Appellant.
• Court: Ohio Supreme Court

Page 221

68 Ohio St.3d 221

626 N.E.2d 59

EASTWOOD MALL, INC. et al., Appellees, v. SLANCO, Appellant.

No. 91-2200.

Supreme Court of Ohio.

Submitted Oct. 12, 1993.

Decided Feb. 9, 1994.

SYLLABUS BY THE COURT

An injunction prohibiting "picketing, patrolling, handbilling, soliciting, or engaging in any other similar activities" on the property of a privately owned shopping center is not an unconstitutional prior restraint on speech in violation of Section 11, Article I of the Ohio Constitution.

Plaintiffs-appellees, Eastwood Mall, Inc. and Great East Mall, Inc., commenced an action against appellant, Michael Slanco, for injunctive relief against his repeated and continuing trespass on their properties. The appellees are private owners of two adjacent shopping centers known as Eastwood Mall and Great East Plaza, in Niles, Ohio. Appellant Slanco repeatedly engaged in picketing and handbilling on appellees' properties, which appellees claimed created congestion and an increased amount of litter. Appellant often wore a sandwich board bearing the message, "Eating at McDonald's is hazardous to your health," and similar messages. At various times, other persons joined appellant in these activities. Many people complained about the activities of appellant.

Appellees enforce a nondiscriminatory policy against all handbilling, picketing, soliciting, and similar activities without their permission on their properties. Appellees requested appellant to leave their properties but he refused to do so. The Niles police refused to enforce the criminal statute against appellant.

After a three-day trial, the trial court granted the injunction to enjoin appellant from handbilling, picketing, soliciting, or engaging in similar activities on appellees' properties. The court of appeals unanimously affirmed the trial court's judgment.

This matter is now before this court upon an allowance of a motion to certify the record.

David A. Fantauzzi, Youngstown, for appellees.

Kevin F. O'Neill, Dayton, and Staughton Lynd, Niles, for appellant.

Ronald G. Galip and Edward J. Sack, urging affirmance for amici curiae, Intern. Council of Shopping Centers, Inc., Edward J. DeBartolo Corp., Forest City Enterprises, Inc., Glimcher Co., and Richards & David Jacobs Group, Inc.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Anthony P. Sgambati II and Barry Laine, urging reversal for amicus curiae, United Food and Commercial Workers Union, Ohio State Council, AFL-CIO.

FRANCIS E. SWEENEY, Sr., Justice.

The issue before this court is whether an injunction prohibiting "picketing, patrolling, handbilling, soliciting, or engaging in any other similar activities" on the property of a privately owned shopping center is an unconstitutional prior restraint on speech in violation of Section 11, Article I of the Ohio Constitution. For the following reasons, we find that it does not violate the Ohio Constitution, and, accordingly, affirm the judgment of the court of appeals.

The law is well settled that there is no right under the First Amendment to the United States Constitution for any person to use a privately owned shopping center as a forum to communicate on any subject without the permission of the property owner. Hudgens v. NLRB (1976), 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196; Lloyd Corp. v. Tanner (1972), 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131.

A state may adopt greater protections for free speech on private property than the First Amendment does, so long as those broader protections do not conflict with the private property owner's constitutional rights under the First, Fifth and Fourteenth Amendments to the United States Constitution. Pruneyard Shopping Ctr. v. Robins (1980), 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741. Appellant argues that Section 11, Article I of the Ohio Constitution should be interpreted to prohibit a privately owned shopping center from restricting free speech, because while both provisions contain a clause stating that no law shall be passed to restrain or abridge the liberty of speech, or of the press, only Section 11, Article I begins with the clause: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right." Appellant claims that this section prohibits a private party as well as a government from restraining the right of any citizen to speak freely.

However, this court has previously concluded that the free speech guarantees accorded by the Ohio Constitution are no broader than the First Amendment, and that the First Amendment is the proper basis for interpretation of Section 11, Article I of the Ohio Constitution. State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 362-363, 588 N.E.2d 116, 123; Zacchini v. Scripps-Howard Broadcasting Co. (1978), 54 Ohio St.2d 286, 288, 8 O.O.3d 265, 266, 376 N.E.2d 582, 583; State v. Kassay (1932), 126 Ohio St. 177, 187, 184 N.E. 521, 525. Furthermore, while Section 11 has an additional clause not found in the First Amendment, the plain language of this section, when read in its entirety, bans only the passing of a law that would restrain or abridge the liberty of speech. When the First Amendment does not protect speech that infringes on private property rights, Section 11 does not protect that speech either. Zacchini v. Scripps-Howard Broadcasting Co., 54 Ohio St.2d at 288, 8 O.O.3d at 266, 376 N.E.2d at 583. Thus, under the facts of this case, we find that Section 11, Article I of the Ohio Constitution is no broader than the First Amendment.

This conclusion was reached by several appellate courts in Ohio which have also read Section 11 as prohibiting only state action that restricts free speech. These courts have held that Section 11 does not prevent a private property owner from excluding an unwanted speaker from its property. Cleveland v. Sundermeier (1989), 48 Ohio App.3d 204, 207, 549 N.E.2d 561, 564; Columbus v. Kasper (Dec. 23, 1987), Franklin App. No. 87AP-508, unreported, 1987 WL 31290; Akron v. Wendell (1990), 70 Ohio App.3d 35, 590 N.E.2d 380. Moreover, this conclusion is consistent with the majority of states whose courts of review have considered this question and have construed the free-speech provisions of their state constitutions to prohibit only state action. Many of these states' constitutional provisions are nearly identical to Section 11, Article I of the Ohio Constitution. These state courts have concluded that a privately owned shopping center may exclude unwanted speech from its property. ¹

In addition, we have held that: " 'The right to contract, the right to do business and the right to labor freely and without restraint are all constitutional rights equally sacred, and the privilege of free speech cannot be used to the exclusion of other constitutional rights nor as an excuse for unlawful activities with another's business * * *.' " Crosby v. Rath (1940), 136 Ohio St. 352, 355-356, 16 O.O. 496, 497, 25 N.E.2d 934, 935. " 'The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights." Bresnick v. Beulah Park Ltd. Partnership (1993), 67 Ohio St.3d 302, 303, 617 N.E.2d 1096, 1097 (citing Loretto v. Teleprompter Manhattan CATV Corp. [1982], 458 U.S. 419, 435, 102 S.Ct. 3164, 3176, 73 L.Ed.2d 868, 882).

Based on the above, we conclude that an injunction prohibiting "picketing, patrolling, handbilling, soliciting, or engaging in any other similar activities" on the property of a privately owned shopping center is not an unconstitutional prior restraint on speech in violation of Section 11, Article I of the Ohio Constitution.

Appellant also argues that the particular injunction issued in this case is overbroad. This argument has merit. The injunction prohibits, in part: "Picketing, patrolling, handbilling, soliciting, or engaging in any other similar activities to communicate or demonstrate on any subject on the private property of Eastwood Mall, Inc. or Great East Mall, Inc. * * *." (Emphasis added.) This injunction can be read to prohibit appellant from "communicating" on any subject without written permission from appellees. Thus, appellant could conceivably be found in violation of the injunction even if he were to encounter a friend on appellees' properties and strike up a conversation on politics, or any subject.

In Lloyd Corp. v. Whiffen (1989), 307 Ore. 674, 685, 773 P.2d 1294, 1300, the Oregon Supreme Court, finding an injunction to be overbroad, stated that a shopping center may not open its property to customers and then "forbid some or all of these visitors from discussing politics while window shopping or sharing a meal." The court held: "Equity simply will not spread a complete blanket over all political activity. People can and do peaceably and unobtrusively talk politics at the [Shopping] Center without creating a need for the extraordinary remedy of an injunction forbidding people engaged in this type of political activity from even venturing onto the property. The trial court went too far in issuing an injunction providing that 'defendants are hereby restrained and enjoined from entering upon plaintiff's property to exercise their expressions of opinion.' " Id. at 686, 773 P.2d at 1301.

Likewise, the injunction in the present case goes too far in prohibiting appellant from "communicat[ing]" on "any subject" on the private properties of appellees. Equity requires that an injunction should be narrowly tailored to prohibit only the complained of activities. Therefore, we hereby modify the injunction order by deleting the words "communicate or."

Judgment affirmed and injunction modified.

MOYER, C.J., A. WILLIAM SWEENEY, RESNICK and PFEIFER, JJ., concur.

WRIGHT, J., dissents.

DOUGLAS, J., not participating.

WRIGHT, Justice, dissenting.

It seems to me this court has taken one step forward but two steps backward in recent cases...