Question
There is case law covering placement of news racks and stands on shopping center property. As I recall if they allow one paper to display their newspaper they have to allow all of them. And that they need to have a policy that clearly states what they allow. Currently I have a problem with a shopping center who without notice removed all the free newspaper racks from their shopping center saying they had no contract allowing us to distribute there. They continue to allow the paid circulation newspapers but appear to have no written policy covering this issue and they refuse to reimburse us for the cost of our lost rack. What exactly does the case law cover in these instances?
Answer
The circulation of newspapers on public property through newsracks is constitutionally protected. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 768 (1988); accord, e.g., Reimer v. City of El Cajon, 52 Cal. App. 3d 441, 443 (1975). Cities do not have unbridled discretion to grant or deny a permit for news racks on sidewalks and other public property — this is because sidewalks are generally considered to be public forums. See ACLU v. City of Las Vegas, 333 F.3d 1092, 1099 (9th Cir. 2003). “[T]he government must bear an extraordinarily heavy burden to regulate speech in such locales.” Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir. 1995).
However, in your case, the newsracks are not on city property, but rather on shopping center property. Although the California Supreme Court has held that the California Constitution protects petitioning and signature-gathering activity at large shopping malls due to their public character, see Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 910 (1979), protection of speech on private property is not as broad as on public property. At least two California Courts of Appeal have held that the Pruneyard right to petition and gather signatures did not apply to a stand-alone stores (in those cases, Trader Joe’s and Costco) that do not share a parking lot with any other commercial establishment.
Further, in Judlo, Inc. v. The Vons Companies, Inc., 211 Cal. App. 3d 1020 (1989), the California Court of Appeal determined that an injunction requiring a grocery store to follow a particular method for allowing newsracks on its property was an unconstitutional “taking” of private property without compensation. In doing so, the court specifically held that “[e]ven if Vons may have permitted other publishers to place their newsracks on its property, it was not required to permit [plaintiff] to do so.” Id. at 1029.
It is possible that a shopping center may be more of a “quasi-public” forum than the individual grocery store in Judlo, and that this might require a different result in your case. However, the Court in Judlo emphasized a constitutionally significant distinction between allowing permanent occupation of property (as in the form of a newsrack) and allowing temporary access to people for distributing or gathering signatures. Id. at 1027-28. In short, because the constitution also protects against taking private property without compensation, regulation of speech that requires a permanent occupation of property is less likely to run afoul of the First Amendment. It may be that, in your case, this distinction allows the shopping center to determine, in its discretion, which newsracks to allow on its property.
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