Law unclear on collecting signatures on private property in California

Answer

First of all, I think most people would agree with you that legal questions about petitioning on private property in California are not entirely clear. While I cannot provide any official opinion on behalf of the First Amendment Coalition, I can give a brief overview of some relevant decisions.

In 1979 the California Supreme Court said that the free speech provisions of the California constitution — which are more expensive than those of the federal constitution — protect “reasonably exercised” speech and petitioning activities in privately owned shopping centers. Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 910 (1979).

In more recent years, though, California courts have narrowed the reach of Pruneyard, particularly with respect to single-tenant shopping areas. In 1999, a Trader Joe’s store in Santa Rosa obtained a preliminary injunction against individuals gathering petition signatures on the property. Trader Joe’s Company v. Progressive Campaigns, Inc.,73 Cal. App. 4th 425 (1999).

The court that upheld the injunction said that although a stand-alone store like Trader Joe’s has opened itself to the public, it has not invited the public to congregate there or do anything other than shop for food and that the store was therefore not the kind of public forum that property owners must yield to free speech activities like petitioning.

Subsequent decisions considering petitioning and related free speech rights at stand-alone retail establishments followed this reasoning and allowed the property owners to significantly restrict speech activities. See Costco Companies,Inc. v. Gallant, 96 Cal. App. 4th 740 (2002); Albertson’s, Inc.v. Young, 107 Cal. App. 4th 106 (2003); Van v. Target Corp.,155 Cal. App. 4th 1375 (2007).

The balancing test applied in these subsequent decisions “focus[es] on whether private property serves as the functional equivalent of a public forum.”  Van, 155 Cal. App.4th at 1383.

Factors that a court might consider include the nature,purpose and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property’s occupants.  Id. at 1384.

The Van case addresses the issue of individuals gathering signatures in front of stores that are located in commercial retail complexes. Van, 155 Cal. App. 4th at 1378.

In that case, appellants represented a class of individuals who gather voter signatures for initiatives, referenda, andrecalls, as well as registered voter signatures for upcoming elections,and, on multiple occasions, has set up tables in front of Wal-Mart,Target and Home Depot entrances for signature gathering purposes, answer asked by store management to leave. Id. at 1379 (internal citations omitted).

The court noted that, applying the factors above,”courts have consistently concluded that modest and individual commercial and retail establishments lack the characteristics of a public forum.” Id. at 1384.

In order for a particular location tobe considered a “quasi-public forum” where one has the right to solicit signatures, “it must be shown that the particular location is impressed with the character of a traditional public forum for purposes of free speech.” Id, Albertson’s,Inc. v. Young, 107 Cal. App. 4th106, 122 (2003).

More specifically, “a location will be considered aquasi-public forum only when it is the functional equivalent of a traditional public forum as a place where people choose to come and meet and talk and spend time.”

The court affirmed the trial court’s determination that the entrance and perimeter areas of the stores “don’t act as the functional equivalent of a traditional public forum,”since there were no plazas, walkways, or courtyards for patrons to congregate and spend time together, and did not invite the public to meet friends, eat, rest, congregate or be entertained at their premises. . at 1388.

“With respect to the nature and extent of the public invitation to use the property, the evidence showed that the stores are uniformly designed to encourage shopping as opposed to meeting friends, congregating or lingering.”

The Pruneyard line of cases does suggest, however, that private commercial property that encourages the congregation of individuals –, the common area of a shopping mall — may be considered a public forum, and therefore any restrictions placed on speech must be:
(1) narrowly tailored,

(2) serve a significant interest, and

(3) leave open ample alternative avenues of communication. , 42 Cal. 4th 850, 865 (2007)

(free speech rights of the California Constitution include the right to urge customers in a shopping mall to boycott one of the stores in the mall, and “citizens have a strengthened interest, not a diminished interest, in speech that presents a grievance against a particular business in a privately owned shopping center, including speech that advocates a boycott”);

see also, e.g., Best Friends Animal Society v.Macerich Westside Pavilion Property LLC, 193 Cal. App. 4th 168, 181-182 (2011) (“[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 disruption of normal business operations. Before imposing blanket bans on time and place, a mall must consider achieving legitimate goals with less restrictions, limiting the number of people or organizations permitted to engage in speech or limiting the manner of speech.”).
There are also several cases decided in federal courts in California that might provide you with some guidance.  For example, in Carreras v. Anaheim, the court found that the exterior walkways and parking areas of a city-owned stadium and convention center were public fora, and regulations prohibiting a religious group from soliciting in these areas were impermissible under the First Amendment and California law. 768F.2d 1039, 1045 (9th Cir. 1985). The areas in question facilitate parking and the free flow of pedestrian and vehicular traffic, and the expressive activity of the religious group was not incompatible with these intended uses..

Fear on the city’s part that the solicitors would behave badly, as it claims the plaintiff had done in the past,were not justification for imposing the regulations that it did, and the city certainly could narrowly tailor the regulations to address any such fears, while still permitting the activity.at 1046-47.

Savage v. Trammell Crow Co, the court upheld a ban on leafleting in the parking lot of a privately owned shopping center as an appropriate time,place and manner restriction. 223 Cal. App. 3d 1562, 1571 (1990).

Eventhough the shopping center was privately owned, the court found that it was a public forum for purposes of First Amendment analysis.

Nonetheless, the court upheld the restriction on leafleting, finding that the regulation was content-neutral, meaning it was adopted due to concerns unrelated to any message that a potential leafletter was attempting to convey.. at 1573.

Also, the regulation was appropriately tailored to meet the center’s interest in keeping the parking lot safe and presentable, given its primary concerns related to littering and interference with ingress and egress to and from the shopping center.Id. at 1573, 1575.

Finally, there were alternative channels of communication open to leafletters, especially considering that such activity was permitted on the center’s sidewalks.

As to your comment about rural areas and other circumstances where there may be fewer public places where people congregate, you might be able to show that in a particular community a single-unit store or other commercial location performs a town square function in a way that the same kind of store ina different community might not.

Advice about the particular legal strategies that you might employ is beyond the scope of what we can provide through this service.

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.