Q: I cannot find the answer to this legal question anywhere, or if I found something similar, the question is about a religious group or a signature gatherer for political purposes which might have an exemption or an inherent right to be soliciting.
I work for a 501c3 part time and I would like to hand out flyers for our nonprofit. I would not be accepting any money, but rather talking to people at shopping centers or on public property about our services.
I have read that shopping malls are considered public town squares. However, the manager of the grocery store that owns the building and the parking lot of this multiple business shopping center told me that they cannot give permission because of a recent lawsuit.
I do not want to make a bad name for our nonprofit nor do I want to make trouble or cause problems, but there has to be somewhere that is legal to hand out flyers for our nonprofit in Southern California.
A. There are several different issues here, which is probably part of why you haven’t been able to find a straight-up answer (and, for the most part, won’t find one here!).
One question is whether the owner of private property that has been opened to the public can restrict people’s speech on that property. This is the general question behind some of the shopping mall cases you may be thinking about.
In 1979, the California Supreme Court said that the California Constitution (which has broader free speech protections than those of the federal constitution) protects “reasonably exercised” speech and petitioning activities in privately owned shopping centers. Pruneyard Shopping Center v. Robins, 23 Cal. 3d 899, 910 (1979). But that decision has been pared down in more recent years, finding less protection at stand-alone stores.
The rationale behind Pruneyard is, as you say below, that shopping centers are like town squares, where people congregate to exchange views and ideas. In the single-store cases, the courts seemed to think the establishments lacked the same town-square feel.
The bottom line here is that whether you are engaged in highly protected political speech or less protected commercial speech, private property owners have fairly broad latitude to restrict your speech (but the more the space in question is like a public town square, the less able the owner should be to restrict speech).
Similar questions can come up with respect to public spaces, though. In those cases, it is not the private property owner but the government that might impose restrictions.
This might take the form of an ordinance prohibiting solicitation or something along those lines (sometimes crafted to restrict speech while appearing to go after something else). These kinds of laws have to be quite narrow and specific in order to avoid violating the First Amendment.
Given that your objective is to avoid getting hassled or running afoul of authority, an analysis of what kind of laws have been upheld and what have been struck down probably isn’t very useful.
Even if you have an absolute First Amendment right to be handing out flyers in a particular place, there’s no guarantee that an overzealous or uninformed police officer wouldn’t take issue with your activity or that an unconstitutional ordinance happens to be in place.
Very generally speaking, though, public spaces that are dedicated to the congregation of people or actual town squares generally have the fewest restrictions on speech, regardless of whether it is political or commercial in nature.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.