The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1005
of :
: February 13,
1998
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE DICK ACKERMAN, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
May the owner of a mobile home park, the owner of an apartment complex, or the
homeowners' association of a condominium project prohibit uninvited, nonresident political
candidates from distributing their campaign materials door-to-door?
CONCLUSION
The owner of a mobile home park, the owner of an apartment complex, and the
homeowners' association of a condominium project may prohibit uninvited, nonresident political
candidates from distributing their campaign materials door-to-door.
ANALYSIS
The question presented for resolution concerns the door-to-door distribution of campaign
materials by political candidates in mobile home parks, apartment complexes, and condominium
projects. The distribution of materials is unsolicited; the candidates have not been invited by the
residents, and "no solicitation" signs have been placed at the front walkways. May the owners
Footnote No. 1 of such developments ban all door-to-door distribution of campaign materials? We
conclude that they may.
We begin our analysis with the general principle that an owner of property has the right to
exclude any and all persons from the property. (See Pen. Code §§ 602, 602.5, 602.8; Kaiser
Aetna v. United States (1979) 444 U.S. 164, 176; Desny v. Wilder (1956) 46 Cal.2d 715, 731;
Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1243.)
The right to exclude, however, is not absolute. (See, e.g., Pen. Code § 602.8, subd. (c)(2);
Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 771-772, fn. 25.) The
only exception that merits examination here Footnote No. 2 is whether the political campaign
materials may be distributed door-to-door as expressions of "free speech" protected by the
federal or state Constitution.
Freedom of expression is protected by the First Amendment of the United States
Constitution, as made applicable to the states by the Fourteenth Amendment. (Stanley v. Georgia
(1969) 394 U.S. 557, 559.) "Congress shall make no law . . . abridging the freedom of speech, or
of the press . . . ." (U.S. Const., Amend. I.) The California Constitution also protects the right of
free speech. It provides:
"Every person may freely speak, write and publish his or her sentiments on all subjects,
being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech
or press." (Cal. Const., art. I, § 2, subd. (a).)
Recently the United States Supreme Court observed that "[l]eafletting and commenting on
matters of public concern are classic forms of speech that lie at the heart of the First Amendment
. . . ." (Schenck v. Pro-Choice Network (1997) 519 U.S. ____, 137 L.Ed.2d 1, 21.) However, the
constitutional protections for such activity are aimed at preventing interference by federal, state,
and local governments with expressive activity that takes place in public areas, such as public
sidewalks. Footnote No. 3 They do not apply to individuals on private property, except in
extremely limited circumstances. (See Hurley v. Irish-American Gay Group of Boston (1995)
515 U.S. 557, 115 S.Ct. 2336, 2344; Hudgens v. NLRB (1976) 424 U.S. 507, 513; Planned
Parenthood Assn. v. Operation Rescue (1996) 50 Cal.App.4th 290, 300; Judlo, Inc. v. Vons
Companies (1989) 211 Cal.App.3d 1020, 1028; Cox Cable of San Diego, Inc. v. Bookspan
(1987) 195 Cal.App.3d 22, 29; Laguna Publishing Co. v. Golden Rain Foundation (1982) 131
Cal.App.3d 816, 835, 841.)
In Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1668, the court discussed
the narrow protection of free speech rights in a situation where government action was not
involved:
"Under the First Amendment to the federal Constitution, private individuals do not have an
unqualified right to engage in free expression and assembly on private property. (Hudgens v.
NLRB (1976) 424 U.S. 507, 518, 521 [no First Amendment right to picket a store in a privately
owned shopping center]; Lloyd Corp v. Tanner (1972) 407 U.S. 551, 567-570 [no First
Amendment right to distribute leaflets at a shopping center when the leafleting is unrelated to the
shopping center's business or operation].) However, under very limited circumstances,
individuals are entitled to exercise First Amendment rights on private property that has been
sufficiently devoted to public use. (Marsh v. Alabama (1946) 326 U.S. 501, 506-507 [where
private property rights were held to yield to free speech rights regarding distribution of religious
literature in a company-owned town, the functional equivalent of a municipality]; see Hudgens v.
NLRB, supra 424 U.S. at pp. 516-521 [clarifying the narrowness of the Marsh exception, to be
applicable only when the private property has assumed all the characteristics of a municipality].)
Although the United States Supreme Court has held the First Amendment does not guarantee any
rights of expression on private property such as a shopping center (Lloyd Corp v. Tanner, supra,
407 U.S. 551; Hudgens v. NLRB, supra, 424 U.S. 507), it affirmed Robins v. Pruneyard
Shopping Center, supra 23 Cal.3d 899, where the California Supreme Court held the California
Constitution (art. I, § 2) protects the expression and petition rights of California citizens even
when those rights are exercised in a privately owned shopping center. (Pruneyard Shopping
Center v. Robins (1980) 447 U.S. 74, 81.) More specifically, the United States Supreme Court
held a state may give greater protection to individual liberties in its own constitution than is
conferred by the federal Constitution. (Id. at p. 81.)"
As indicated in Planned Parenthood, the federal Constitution protects freedom of expression on
private property devoted to public use in a "company-owned town" (see Marsh v. Alabama
(1946) 326 U.S. 501), "involv[ing] the assumption by a private enterprise of all of the attributes
of a state-created municipality and the exercise by that enterprise of semi-official municipal
functions as a delegate of the State." (Hudgens v. NLRB, supra, 424 U.S. at 519.) Because
mobile home parks, apartment complexes, and condominium projects do not assume such
attributes or exercise such functions, the First Amendment does not afford nonresident political
candidates the right to distribute campaign materials door-to-door against the wishes of the
owners of such properties. Footnote No. 4
Our analysis of the First Amendment is helpful but does not control our analysis of the free
speech guarantees of the state Constitution, since in certain circumstances, "the California
Constitution provides greater protection than its federal counterpart for freedom of speech and
the press." (Brown v. Kelly Broadcasting Company (1989) 48 Cal.3d 711, 745.)
Specifically, the First Amendment's protection of expressive activity in company towns has
been extended in California to privately owned shopping centers serving as "the suburban
counterpart of the traditional town center business block." (Planned Parenthood v. Wilson,
supra, 234 Cal.App.3d at 1670.) In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899,
affirmed on other grounds sub. nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74,
the California Supreme Court ruled that a shopping center that provided a place for large
numbers of the public to congregate was subject to the free speech guarantees of the California
Constitution. (Id., at pp. 909-910.)
The shopping center exception in California, however, does not apply to "the property . . .
of an individual homeowner or the proprietor of a modest retail establishment (Robins v.
Pruneyard Shopping Center, supra, 23 Cal.3d at 910), medical office buildings with adjoining
parking lots (Feminist Women's Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1654,
1660-1661; Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at 1671-1672), the private
sidewalk of a downtown bank (Bank of Stockton v. Church of Soldiers (1996) 44 Cal.App.4th
1623, 1629-1630), or a privately owned 150-unit apartment complex consisting of 16 buildings
(Cox Cable San Diego, Inc. v. Bookspan, supra, 195 Cal.App.3d at 28-30). In the Cox Cable
case, the court explained:
"Nothing in the record suggests that the 150-unit Woodlawn apartment complex has the
attributes of a quasi-municipality. The record does not indicate that Woodlawn has its own
system of roads and streets, security force, parks, recreation facilities, self-government dealing
with internal maintenance, security or operation of the complex or other indicia of a quasi-
municipality. (Cf. Laguna Publishing Co. v. Golden Rain Foundation, supra, 131 Cal.App.3d at
p. 843, fn. 10.)
"Nor is there anything in the record to suggest that Woodlawn is a quasi-public forum like a
shopping mall where the public is invited to gather. Instead, Woodlawn is a place where the
public is generally excluded, where an individual can escape the public forum by retreating into
his or her apartment and closing the door." (Id., at p. 29.)
Similarly, here, the owners of a mobile home park, apartment complex, and condominium
project do not provide a place where large numbers of the public are invited to congregate. The
"shopping center" exception, like the "company town exception," is thus unavailable for political
candidates wishing to distribute campaign materials door-to-door against the wishes of the
owners.
We conclude that the owner of a mobile home park, the owner of an apartment complex,
and the homeowners' association of a condominium project may prohibit uninvited, nonresident
political candidates from distributing their campaign materials door-to-door.
*****
Footnote No. 1
With respect to the common areas surrounding individually owned condominiums, the homeowners' association
may be considered the owner. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499-501;
Duffey v. Superior Court (1992) 3 Cal.App.4th 425, 428-429.)
Footnote No. 2
Since we are dealing with political candidates who are uninvited nonresidents, we need not consider the individual
rights of the residents under various statutory schemes that are applicable to mobile home parks (e.g., Civ. Code,
§§ 798-799.9), apartment complexes (e.g., Civ. Code, §§ 1940-1954.1), or condominium projects (e.g., Civ. Code,
§§ 1350-1376).
Footnote No. 3
As stated in Schenck, "speech in public areas is at its most protected on public sidewalks, a prototypical example of
a tradional public forum"; nevertheless, "[i]n some situations, a record of abusive conduct makes a prohibition on
classic speech in limited parts of a public sidewalk permissible." (Ibid.) As explained below, the situation presented
here does not involve government interference with speech activity in public areas.
Footnote No. 4
In Laguna Publishing Co. v. Golden Rain Foundation, supra, 131 Cal.App.3d at 836, the court described an eight-
square-mile condominium complex of 20,000 residents, with its own system of roads, security force, parks,
recreation facilities, and self-government, as having attributes that "in many ways approximate a municipality
. . . close to a characterization as a company town." Nevertheless, while the court concluded that the owner of the
complex could not discriminate by allowing one but not a second free newspaper to be distributed, it could deny
distribution to all such newspapers equally. (Id., at p. 845.)