Robins v. Pruneyard Shopping Center

RICHARDSON, J.

I respectfully dissent. The majority relegates the private property rights of the shopping center owner to a secondary, disfavored, and subservient position vis-á-vis the “free speech” claims of the plaintiffs. Such a holding clearly violates federal constitutional guarantees announced in Lloyd Corp. v. Tanner (1972) 407 U.S. 551 [ 33 L.Ed.2d 131 , 92 S.Ct. 2219 ].

The majority recites, in cursory fashion, that the trial court herein “rejected [plaintiffs’] request that Pruneyard be enjoined from denying them access.” (Ante, p. 903.) Conspicuously absent from the opinion, however, is any reference to the trial court’s careful findings of fact and conclusions of law, which are essential to a proper understanding and disposition of this case.

In brief, following a full evidentiary hearing, the trial court specifically found as follows: The Pruneyard Shopping Center is located entirely on private property, and its owner had adopted a nondiscriminatory policy of prohibiting all handbilling and circulation of petitions by anyone and regardless of content. Plaintiffs entered on Pruneyard property and sought to obtain signatures to petitions entirely unrelated to any activities occurring at the center. (The petitions were to the President of the United States and the Congress opposing a United Nations resolution which condemned Zionism and attacking Syria’s emigration policy.) Pruneyard is located in Santa Clara County which contains numerous forums for distributing handbills or gathering signatures, including “many shopping centers, public shopping and business areas, public buildings, parks, stadia, universities, colleges, schools, post offices and similar public areas where large numbers of people congregate.” The court further found that numerous alternative public sites were available to plaintiffs for their *912 purposes. Nonetheless, plaintiffs made no attempt whatever to obtain signatures on their petition in these alternative public areas, whether situated nearby or otherwise.

From the foregoing findings of fact the trial court expressly concluded as matters of law that there had been no dedication of the center’s property to public use, that the center is not the “functional equivalent” of a municipality, and that “There are adequate, effective channels of communication for plaintiffs other than soliciting on the private property of the Center.” On the basis of these findings of fact and conclusions of law, the trial court denied plaintiffs the injunctive relief which they - sought.

With due deference, I suggest that the able trial court’s judgment was not only entirely proper, but was compelled by the holdings in Lloyd Corp. v. Tanner, supra, 407 U.S. 551 , and Diamond v. Bland (1974) 11 Cal.3d 331 [ 113 Cal.Rptr. 468 , 521 P.2d 460 ] (cert. den. 419 U.S. 885 [ 42 L.Ed.2d 125 , 95 S.Ct. 152 ]). The present majority, unable to escape the controlling force of Lloyd, acknowledges that “Lloyd held that a shopping center owner could prohibit distribution of leaflets when they communicated no information relating to the center’s business and when there was an adequate, alternate means of communication.” (Ante, p. 904.) However, the majority attempts to circumvent Lloyd by relying upon the “liberty of speech clauses” of the California Constitution. I believe that such an analysis is clearly incorrect, because the owners of defendant Pruneyard Shopping Center possess federally protected property rights which do not depend upon the varying and shifting interpretations of state constitutional law for their safeguard and survival. Indeed, this was the precise effect of our own express holding in Diamond v. Bland, supra, wherein we stated with great clarity that “. . . we must reject plaintiff’s proposal . . . that we consider using the ‘free speech’ provisions of our state Constitution to reach a contrary result in this case. Even were we to hold that the state Constitution in some manner affords broader protection than the First Amendment to the United States Constitution . . . , nevertheless supremacy principles would prevent us from employing state constitutional provisions to defeat defendant’s federal constitutional rights.” ( 11 Cal.3d at p. 335, fn. 4 , italics added.) This constitutional principle is as sound today as it was less than five years ago when we last expressed it.

The application of our Diamond holding to the case before us is clear and inescapable. Nonetheless, the present majority now disavows Dia *913 mond and attempts to distinguish Lloyd as “primarily a First Amendment case” rather than a private property case. (Ante, p. 904.) Apparently, the majority now believes that Lloyd merely held that the leaflet distributors in that case lacked any First Amendment rights to assert against the shopping center owners, a deficiency the majority would now cure by creating more substantial “free speech” rights under the California Constitution than are recognized under the First Amendment.

The majority seriously errs in its excessively narrow reading of Lloyd, which expressed its fundamental reliance upon the constitutional private property rights of the owner throughout the entire opinion. This becomes apparent in the opening paragraph of Lloyd, wherein the high court, speaking through Justice Powell, explained that “We granted certiorari to consider petitioner’s contention that the decision below violates rights of private property protected by the Fifth and Fourteenth Amendments.” (407 U.S. at pp. 552-553 [ 33 L.Ed.2d at p. 133 ], italics added.) The court further observed that “The basic issue in this case is whether respondents, in the exercise .of asserted First Amendment rights, may distribute handbills on Lloyd’s private property contrary to its wishes and contrary to a policy enforced against all handbilling.” (P. 567 [ 33 L.Ed.2d at p. 142 ], italics in original.) The Lloyd court carefully admonished that “It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist. Such an accommodation would diminish property rights without significantly enhancing the asserted right of free speech.” (Ibid. [33 L.Ed.2d, pp. 141-142], italics added.) This has precise application to the case before us for, as noted above, the trial court in the present case expressly found that plaintiffs had adequate alternative forums in which to conduct their activities. Contrary to the majority’s thesis, Lloyd cannot be distinguished. It was, and is, a property rights case of controlling force in the litigation before us.

Recognizing the “special solicitude” owed to the First Amendment guarantees, the high court in Lloyd nonetheless noted that “this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.” (P. 568 [33 L.Ed.2d p. 142].) Moreover, the court determined that although a shopping center is open to the public, “property [does not] lose its private character merely because the public is generally invited to use it for designated purposes.” (P. 569 [33 L.Ed.2d, p. 143].) It is self-evident that the federally protected property *914 rights are the same whether the shopping center is in Oregon, as in Lloyd, or in California, as in the present case.

The Lloyd court acknowledged that considerations of public health and safety may justify an “appropriate government response” through police power regulations. (P. 570 [33 L.Ed.2d, p. 143].) However, “the Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens, must be respected and protected. The Framers of the Constitution certainly did not think these fundamental rights of a free society are incompatible with each other. There may be situations where accommodations between them, and the drawing of lines to assure due protection of both, are not easy. But on the facts presented in this case, the answer is clear. [If] We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights.” (Ibid. [33 L.Ed.2d p. 143], italics added.)

The lesson to be learned from Lloyd is unmistakable and irrefutable: A private shopping center owner is protected by the federal Constitution from unauthorized invasions by persons who enter the premises to conduct general “free speech” activities unrelated to the shopping center’s purposes and functions. Nor is the foregoing principle in any way diminished or affected by the fact that the claimed free speech rights are purportedly sanctioned by the California Constitution, given the overriding supremacy of the federal Constitution.

The familiar words of article VI, clause 2, of the United States Constitution read as follows: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.’'’ (Italics added.) The controlling import of the supremacy clause on the issue before us is readily apparent. The United States Supreme Court, interpreting the United States Constitution, has declared that an owner of a private shopping center “when adequate, alternative avenues of. communication exist,” has a property right protected by the Fifth and Fourteenth Amendments which is superior to the First Amendment right of those who come upon the shopping center premises for purposes unrelated to the center. In such cases, no state court, interpreting a state Constitution, including this court interpreting the California Constitution, can contravene such a federal constitutional *915 ly protected right. Thus, in this case, the majority is prevented from relying on the California Constitution to impair or interfere with those property rights. We are bound by the United States Supreme Court interpretations of the United States Constitution. More specifically, in a confrontation between federal and state constitutional interests, federally protected property rights recognized by the United States Supreme Court will prevail against state protected free speech interests where alternative means of free expression are available.

The federal cases decided in this area subsequent to Lloyd do not support the majority’s holding. In Hudgens v. NLRB (1976) 424 U.S. 507 [ 47 L.Ed.2d 196 , 96 S.Ct. 1029 ], the high court cited and quoted from Lloyd with obvious approval, and extended Lloyds holding to encompass labor dispute picketing within a private shopping center. The picketers in Hudgens had argued that their free speech interests were paramount to the private property rights of the center owner, given the existence of a labor dispute with one of the center’s lessees. The high court rejected the argument, relying upon Lloyd, and remanded the case to the National Labor Relations Board for disposition. Contrary to the suggestion of the majority herein, the remand to the NLRB was not an implied rejection of the property interests of the center owner, for it is well established (by a companion case to Lloyd) that the NLRB must uphold the owner’s private property rights in such cases unless there has been an outright dedication of the center property to public use. (Central Hardware Co. v. NLRB (1972) 407 U.S. 539, 547 [ 33 L.Ed.2d 122, 128-129 , 92 S.Ct. 2238 ].) As Central Hardware explains, and echoing Lloyd, to accept the premise that such a dedication occurs merely because private property is “open to the public” for commercial purposes would constitute “an unwarranted infringement of long-settled rights of private property protected by the Fifth and Fourteenth Amendments.” (Ibid. [33 L.Ed.2d. l22, 129], italics added.)

Nor does the recent case of Eastex, Inc. v. NLRB (1978) 437 U.S. 556 [ 57 L.Ed.2d 428 , 98 S.Ct. 2505 ], assist the majority. There, the Supreme Court upheld the rights of employees to distribute certain organizational material at their work site. The distinction between the rights of employees and nonemployees in this situation is well recognized, as was expressly noted- by the Eastex court itself: “The Court recently has emphasized the distinction between the two cases: ‘A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were *916 there involved.’ [Citing Hudgens, 424 U.S. 507 , and Central Hardware, 407 U.S. 539 , both supra.].” (Pp. 571-572 [57 L.Ed.2d p. 442], italics added.)

The majority correctly observes that “property rights must yield to the public interest served by zoning laws . . . , to environmental needs . . . , and to many other public concerns.” (Ante, p. 906.) Yet the “zoning for free speech uses” which the majority attempts to accomplish today goes far beyond any traditional police power regulation. Such unprecedented fiat has no support in constitutional, statutory or' decisional law. The character of a free speech claim cannot be transmuted into something else by changing the label and invoking the police power. As noted above, the Lloyd case acknowledged that considerations of public health and safety may justify an “appropriate government response,” but that “on the facts presented in this case, the answer is clear.” (407 U.S. at p. 570 [33 L.Ed.2d at p. 143], italics added; see also, Euclid v. Ambler Co. (1926) 272 U.S. 365, 395 [ 71 L.Ed. 303, 314 , 47 S.Ct. 114 , 54 A.L.R. 1016 ] [zoning laws, and other police power regulations, must have a substantial relation to the public health!, safety, morals or general welfare].)

Because, as the trial court expressly found, plaintiffs had adequate public forums in which to conduct their activities, their unauthorized entries on Pruneyard property manifestly cannot be excused on the basis of any state policy or goal “to protect free speech and petitioning.” (Ante, p. 908.) The Lloyd rationale is applicable and unanswerable. The majority may not evade it by resort, in this instance, to the California Constitution, which must yield to a paramount federal constitutional imperative.

The judgment should be affirmed.

Clark, J., and Manuel, J., concurred.

Respondents’ petition for a rehearing was denied May 23, 1979. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.