Opinion
The question presented is whether article I, section 2 of the California Constitution permits a privately owned shopping mall to
FACTS
Westside Pavilion is a large shopping mall comprised of an original building and a new building. Macerich regulates the use of the common areas of Westside Pavilion with rules (WP Rules).
In particular, the WP Rules apply to noncоmmercial expressive activity such as political and religious speech, the request for signatures on petitions, the registration of voters and the dissemination of noncommercial leaflets or flyers. In addition, they apply to qualified labor activity, which is defined to mean “activity authorized by the National Labor Relations Act or applicable state labor laws that is conducted by: 1) an employee of a person or business engaged in work at [Westside Pavilion] who has a labor dispute with his or her employers; 2) a labor organization representing an employee of a person or business engaged in work at [Westside Pavilion] who has a labor dispute with his/her employer; 3) an individual attempting to organize employees of pеrsons or businesses engaged in work at [Westside Pavilion]; and/or 4) a labor organization or a representative of a labor organization attempting to engage in picketing and/or informational leafleting (area standards and/or consumer activity) at [Westside Pavilion].”
The two types of expressive activity are regulated differently. Noncommercial expressive activity is limited to areas designated by the WP Rules; subject to Macerich’s discretion, noncommercial expressive activity is not permitted on blackout days;
Citing to the WP Rules, Macerich said that PAPLA would have to limit its activity to one of two designated areas, i.e., an area on the first floor of the original building or an area on a third level pedestrian bridge that connects the original building and the new building. Macerich further advised that PAPLA would not be permitted to protest on blackout days.
PAPLA began protesting in the designated area on the pedestrian bridge even though the location was not within aural or visual range of Barkworks. In the meantime, counsel for PAPLA objected to the WP Rules on the grounds that they discriminated between labor and nonlabor activity and were therefore unconstitutional under California law. Macerich defended the WP Rules, stating that the “discrimination between labor-related and non-labor-rеlated petitioning activity is constitutional” and that a mall is otherwise permitted to limit petitioning activity to designated areas and days.
Macerich eventually offered PAPLA some additional locations. Best Friends did not consider them suitable. It sued Macerich for declaratory and injunctive relief based on the theory that the restrictions on free speech in the WP Rules violate article I, section 2 of the California Constitution. After initiating suit, Best Friends filed a motion for preliminary injunction to enjoin Macerich from enforcing the WP Rules to restrict PAPLA from protesting within aural and visual range of Barkworks or from protesting on blackout days. The motion was denied on the grounds that Union of Needletrades, etc. Employees v. Superior Court (1997)
This timely appeal followed.
I. Preliminary injunction law; standard of review.
When ruling on a motion for preliminary injunction, “trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. [Citations.]” (IT Corp. v. County of Imperial (1983)
II. In general, the right of free speech in California entitles a person or group to protest a business in a shopping mall within aural and visual range of that business with no blackout days.
This appeals pivots upon the right of free speech within California. As a preliminary matter, we examine that right.
Article I, section 2, subdivision (a) of the state Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects .... A law may not restrain or abridge liberty of speech or press.” This clause, known as the liberty of speech clause, “is broader and more protective than the free speech clause of the First Amendment. [Citations.]” (Los Angeles Alliance for Survival v. City of Los Angeles (2000)
When analyzing time, place and manner restrictions, we may utilize California law as well as “ ‘federal constitutional standards.’ [Citation.]” (Alliance, supra, 22 Cal.4th at p. 364, fn. 7; see Snatchko v. Westfield LLC (2010)
A. Place restrictions: designated areas.
1. Federal law.
In general, federal cases establish that people engaged in free speech must be given sufficient access to their intended audience. (Students Against Apartheid Coalition v. O’Neil (W.D.Va. 1987)
As explained in Bay Area Peace Navy v. U.S. (9th Cir. 1990)
Service Employees Internat. Union v. City of Los Angeles (C.D.Cal. 2000)
2. The evolution of California law.
The law regarding limitations on free speech to designated areas in malls has been considered in H-CHH Associates v. Citizens for Representative Government (1987)
H-CHH invalidated an unwritten rule that either restricted expressive activity to а certain area or gave mall management unbounded discretion to determine where expressive activity could take place. (H-CHH, supra,
In 1997, UNITE was decided. It involved a dispute over the wages and working conditions of those who manufactured apparel for a company that sold clothes, inter alia, in shopping malls. A union sought to place four individuals in front оf stores in six shopping malls to picket and distribute leaflets, including Westside Pavilion. The shopping malls cited their designated area rules and denied the requests. (UNITE, supra, 56 Cal.App.4th at pp. 1009-1012.) On appeal, the court found the rules valid. It is the only case to hold that “a shopping center is constitutionally empowered to enact a rule limiting expressive activities to a particular area.” (Id. at p. 1010.) In doing so, it relied on a statement in H-CHH that Pruneyard “recognized in the owner important rights of substance; those rights are identified as freedom from disruption of normal business operations and freedom from interference with customer convenience.” (H-CHH, supra,
The most recent California case regarding free speech rights in malls is Snatchko. In Snatchko, the court analyzed rules that, inter alia, prohibited noncommercial expressive activity except for one-on-one communications taking place in designated areas. Private conversations between persons previously acquainted as well as activity sponsored by the mall or its tenants were exempt. As applied, the rules allowed strangers to converse about mall-related matters.
H-CHH and Snatchko are consistent with federal principles of free speech because they allow people engaged in expressive activity to access desired areas in shopping malls unless excluding them would pass the appropriate level of scrutiny. In contrast, UNITE is inconsistent with those federal principles because it would permit a shopping mall to limit expressive activity to designated areas regardless of the suitability of those areas or the suitability of other, more desirable areas. Accordingly, we opt not to follow the lead of UNITE.
B. Time restrictions: blackout days at California businesses.
Blackout days were considered by UNITE, supra,
UNITE upheld blackout days based on unspecified evidence that they were necessary. (UNITE, supra,
In the absence of a narrow tailoring analysis, UNITE and H-CHH are dubious authority regarding the validity of blackout days. We also have concerns about the analysis in Costco. Though Costco concluded that the blackout days were narrowly tailored, it considered the restriction in a vacuum. In other words, it concluded that the blackout days were narrowly tailored because they represented less than 10 percent of the calendar year. The court did not consider whether the restriction was overbroad because it barred nondisruptive speech as well as disruptive speech. Nor did it consider that people engaged in free speech would likely convey their message to a proportionally larger audience on a blackout day compared to any other day. In addition, the court did not examine whether the store could have achieved its interest in smooth operation through the use of restrictions rather than a blanket ban. (Costco, supra,
Carpenters, of course, is not binding on us. But we agree with Carpenters that a blanket ban is overbroad, at least in cases where there is no showing that other restrictions will not suffice.
C. Conclusion.
To sum up our survey of the law, it is a general proposition that a shopping mall must allow protests within aural and visual range of a targeted business whenever the mall is open to the public. A mall may not impose blanket bans on the time or place of free speech unless there is proof that blanket bans are the only way to prevent substantial dismption of normal business operations. Before imposing blanket bans on time and place, a mall
III. Best Friends is entitled to a preliminary injunction.
A. The WP Rules are content based to the degree that they distinguish between noncommercial expressive activity and qualified labor activity.
The United States Supreme Court “has stated that a restriction is content neutral if it is ‘justified without reference to the content of the regulated speech.’ [Citations.]” (Alliance, supra, 22 Cal.4th at pp. 367-368.) On their face, the WP Rules regulate speech based on content, i.e., qualified labor activity is given greater reign at Westside Pavilion versus noncommercial expressive activity. Our conclusion is consistent with federal cases that examined and rejected regulations with comparable impact on free sрeech. In Police Department of Chicago v. Mosley (1972)
Macerich argues that even if the WP Rules are literally content based, they must be treated as content neutral because the distinction between qualified labor activity and noncommercial expressive activity is based on efforts to comply with labor law and not based on censorship or favoritism to any viewpoint. But Macerich did not cite any case law—federal or state— requiring it to discriminate against noncommercial expressive activity or grant greater free speech rights in public forums to qualified labor activity than other speech.
It is true, as Macerich points out, that case law does not always require literal content neutrality in time, place and manner restrictions. (Alliance, supra,
Neither case helps Macerich. The WP Rules fall well outside of Alliance because they do not apply evenly to a kind of speech regardless of content. It is indisputable that they allow protests with labor messages in areas proximately located to targeted employers or businesses, but protests • with nonlabor messages are not afforded the same right. And, simply put, there is no analogy between the WP Rules and the injunction in DVD Copy because the WP Rules are not justified by a statutorily created property interest in information.
We note that Carpenters supports our conclusion that the WP Rules are content based. That case involved the following rules in two shopping malls: (1) a ban on activities that identify by name the mall owner, manager, or tenants; (2) a ban on signage and written materials that interfere with the commercial purpose of the mall; (3) а ban on the carrying or wearing of signs; (4) an application process that requires the presubmission of written materials; (5) the exclusion of exterior areas, including mall sidewalks, from designated areas where expressive activities may occur; and (6) the prohibition of expressive activities during peak traffic days. (Carpenters, supra, 540 F.3d at pp. 960-961.) In analyzing whether the rules were content based, the court cited Ninth Circuit law establishing that “[s]peech-regulating rules are considered content-neutral when the rules are not related to the subject or topic of the speech. [Citation.] Rules are generally considered content-based when the regulating party must examine the speech to determine if it is acceptable. [Citation.]” (Id. at p. 964, fn. omitted.) The court applied the foregoing law and held: “[T]he identification ban is content-based because [the management company] would have to review the content of speech and literature to determine whether the speech violated the ban by naming a mall tenant, owner, or manager.” (Ibid.) According to the court, the same analysis applied to the second rule. In addition, the application required by the fourth rule was content based insofar as it was used to enforce rules one and two. (Id. at pp. 966-967.) Only rules three, five and six were deemed content neutral. (Id. at pp. 967-972.) Using Carpenters as a guide, we are led inexorably to the one conclusion: the restrictions regarding the locations and dates of free speech are content based because they require Macerich to review the message to decide if it is allowed.
A content-based regulation is presumptively invalid, and the proponent must prove that the regulation is lawful. (Keenan v. Superior Court, supra,
Macerich argues that the WP Rules are necessary to serve the compelling interest of complying with federal and state law by allowing qualified labor activity within close proximity of a targeted employer.
C. The propriety of injunctive relief.
Based on our constitutional analysis, we conclude that Best Friends demonstrated a likelihood of success on the merits at trial. Regarding the balancing of harms, we conclude that there is no need to delve into the matter beyond a few salient comments. First, the trial court found that Best Friends met its burden on this issue, and neither party has analyzed or asked us to revisit it. Second, cases “have repeatedly held that harms to speech rights ‘ “for even minimal periods of time, unquestionably constitute[] irreparable injury” ’ supporting preliminary relief. [Citations.]” (Scott v. Roberts (11th Cir. 2010)
IV. Injunctive relief will not result in a taking.
Macerich argues that allоwing PAPLA unrestricted access to Westside Pavilion to engage in expressive activity is an unconstitutional taking under the Fifth Amendment. This is a straw man argument. Our holding still permits Macerich to enforce time, place and manner restrictions as long as they are content neutral and pass intermediate scrutiny or are content based and pass
DISPOSITION
The order denying Best Friend’s motion for preliminary injunction is reversed. Pending final resolution of the litigation below, Macerich may not prohibit Best Friends or PAPLA from protesting within aural and visual range of Barkworks when Westside Pavilion is open to the public unless Macerich proves that PAPLA cannot protest in any manner in a particular place or on particular days without substantially interfering with normal business operations.
Best Friends is entitled to recover its costs on appeal.
Doi Todd, Acting P. J., and Chavez, J., concurred.
Notes
The WP Rules identified the blackout days as February 14, May 9, June 20, October 31, November 14, November 21, November 27 through 29, and December 5 through 26.
At the time, PAPLA was known as Puppy Store Free L.A. For ease of reference, we simply refer to PAPLA.
In analyzing the specifics of the secure zone, the court stated that “[w]hile defendants claim that there is a ‘sight line’ from the Demonstration Area to the Staples Center, the distance ensures that only those delegates with the sharpest eyesight and most acute hearing have any chance of getting the message, that is, assuming that the ‘sight line’ is not blocked during the convention. This is a questionable assumption because it does not account for the fact that, between the Staples Center entrance and the Demonstration Area, there will be a ‘media village’ housing 10,000 members of the media with their equipment (such as staging facilities and a large screen TV). . . . Thus, it is likely that the delegates will not be able to see or hear messages conveyed in the ‘Official Demonstration’ area. In short, at this crucial political event, those who do not possess a ticket to the convention cannot get close enough to the facility to be seen or heard. The First Amendment does not permit such a result.” (Service Employees, supra,
H-CHH upheld a ban on soliciting political funds. (H-CHH, supra,
The rules in Snatchko provided that “ ‘[t]hese Rules are not intended to apply to activity sponsored by the [mall] and/or an enterprise(s) engaged in business at the [mall].’ ‘These Rules also are not intended to apply to private conversations between and among persons previously acquainted with one another.’ ” (Snatchko, supra,
The parties asked us to consider Savage v. Trammel Crow Co. (1990)
Both parties devoted a substantial portion of their briefs to discussing whether labor-related free speech has special rights in public forums not enjoyed by other free speech (even political speech). The cases cited by Macerich are so completely inapposite we decline to discuss them. We note that since oral argument, the Fifth Appellate District decided Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (2011)
In the introduction to its respondent’s brief, Macerich states that the WP Rules “limit expressive activity to four designated areas, all of which are located in high-traffic areas that also avoid safety and fire hazards, as well as inconvenience to the [Westside Pavilion’s] patrons.” Macerich further states that prohibiting expressive activity on certain days “is critical to preserving patron safety, limiting traffic flow and congestion and maximizing the . . . center’s normal business operations.” Macerich does not contend that any of these reasons qualify as a compelling state interest for purposes of strict scrutiny, nor could it. Safety concerns are blind to the content of the speech being regulated, so Macerich’s position is undermined by the fact that the WP Rules do not apply to all speech.