Appellate Court Affirms Right Of Privately Owned Shopping Center To Prohibit Solicitation In The Areas Adjacent To Store Entrances

The recent appellate court decision on January 6, 2015, in Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, et. al. highlights that in California a free speech analysis does not end with an analysis under the First Amendment.  Rather, the wider protections afforded under the California Constitution must also be considered. 

Applying the broader protections under the California Constitution, the Fifth Appellate District in Schriber v. Nu Creation upheld the trial court’s determination that it was not a violation of the liberty of speech provision for a  private shopping center to prohibit solicitation at the areas adjacent to entrances to individual stores.  The defendant, appearing in pro per, argued (via a declaration that was not signed under penalty of perjury and thus was found inadmissible by the trial court) that these areas were a public forum because there were benches and seating near the entrances which encouraged members of the public to stop and congregate for conversation and relaxation.  The appellate court found that the trial court was the finder of fact and that the evidence supported the trial court’s finding that the sidewalk and apron areas wherethe solicitation activity was conducted was not a public forum area in which the private shopping center was obliged to permit members of the community to exercise their liberty of speech rights under the California Constitution. 

The Schriber court’s analysis drew upon two prior California Supreme Court cases, Fashion Valley Mall LLC  v. Pruneyard (2007) 42 Cal.4th 850 and Ralphs Grocery Co. v. United Food & Commercial Wokers Union Local 8 (2012) 55 Cal.4th 1083.  In Pruneyard,the California Supreme Court explained that the liberty of speech provision under the California Constitution offers broader protection to free speech rights than are afforded under the First Amendment and that such rights are protected at shopping centers even when the shopping center is privately owned (such free speech rights at privately owned shopping centers are generally not protected under the First Amendment).  Pruneyard, 42 Cal.4th 850.  Then in the Ralphs case, the California Supreme Court refined its analysis and explained that it is the common areas of a privately owned shopping center, which have seating and other amenities that encourage shoppers to stop and linger or to congregate for purposes of relaxation and conversation, where speech rights are protected.  See Ralphs, 55 Cal.4th 1083.  By contrast, areas immediately adjacent to store entrances which serve a utilitarian purpose of facilitating customers’ ingress and egress, are generally not public forum areas.  See id.  

Of note, in the Prunyard, Ralphs and Schriber cases the private shopping centers all asked that the police arrest the solicitors and in all three cases the police declined to do so without a court order.  This continues to be a prudent approach as an analysis as to whether a specified area of a privately owned shopping center will be considered a public forum where such activity is allowed remains a nuanced and fact-specific inquiry.  The cases now make clear that the areas adjacent to individual store entrances generally are not deemed a public forum.  It may be, however, that under certain factual scenarios, such as the presence of a large seating area near the entrances, that the courts could find that the entrance areas are transformed into a public forum.  Indeed, had the defendant in the Schriber case presented stronger admissible evidence the trial court and/or the appellate court could conceivably have been persuaded that the area qualified as a public forum.