[free-sklyarov] 2600 Meetings?
Karsten M. Self
kmself at ix.netcom.com
Sun Aug 5 12:31:04 PDT 2001
on Sun, Aug 05, 2001 at 10:52:32AM -0600, Paul Gowder (paul at paultopia.net) wrote:
Thanks to Paul for this list. I've taken the liberty of reformatting it
for slightly easier reading (at least under monospaced fonts).
> I happen to have a reasonably comprehensive listing. The good states are
> the ones you'd expect -- the notoriously liberal ones, CA, MA, OR,
> etc. The bad states are also the ones you'd expect. Included below. (I
> didn't cite the major federal cases screwing with the federal first
> amendment doctrine, nor did I actually cite pruneyard itself, anyone who
> wants it e-mail me and I'll dig 'em up.) (Also, for logistical reasons, I
> may be missing some cases from 1993-1996 -- this list is not, in other
> words, authoritative.)
>
STATE CASES ON PRUNEYARD DOCTRINE (FREE SPEECH IN SHOPPING MALLS) AS OF MID
1999
State Name: Alaska
Pruneyard Status: limited
Citations: Johnson v. Tait, 774 P.2d 185, 190 (1989)
Comments: rejected as to small businesses (a tavern), but
expressly reserves the question of shopping centers. See
also Fardig v. Municipality of Anchorage, 785 P.2d 915
(Alaska App. 1990) (rejects as to abortion clinic parking
lot, again holds out the possibility of deciding differently
in shopping mall)
State Name: Arizona
Pruneyard Status: rejects
Citations: Fiesta Mall Venture v. Mecham Recall Ctte., 159 Ariz.
371, 767 P.2d 719 (1989)
Comments: explicitly rejects both free speech and referendum
rationales for the doctrine. Their free speech may be more
expansive than federal, but requires state action.
State Name: Colorado
Pruneyard Status: accepts
Citations: Bock v. Westminster Mall Co., 819 P.2d 55 (1991)
Comments: Functional equivalency to public forum, state action
required but found based on gov't financing, presence, etc.
State Name: Conneciticut
Pruneyard Status: rejects
Citations: Cologne v. Westfarms Associates, 192 Conn. 48, 469
A.2d 1201 (1984)
Comments: Clear endorsement of Lloyd v. Tanner (referred to as
Lloyd)argument. Strong dissent.
State Name: Georgia
Pruneyard Status: rejects
Citations: Citizens for Ethical Government v. Gwinnet Place
Assoc., 260 Ga. 245, 392 S.E.2d 8 (1990)
Comments: expressly adopts Lloyd.
State Name: Illinois
Pruneyard Status: rejects
Citations: People v. Diguida, 604 N.E.2d 336 (1992)
Comments: Not a mall case: store in question is a grocery store.
Explicitly distinguishes Batchelder on that axis. Grocery
store is not public forum. Their free speech clause (not
their initiative/election clause) is broader than the first
amendment, but only covers public or quasi-public. Does not
state what would qualify as quasi-public.
State Name: Indiana
Pruneyard Status: rejects
Citations: Wilhoite v. Melvin Simon & Associates, 640 N.E.2d 382
(Ind. App. 2 dist. 1994) Comments: there is no liberty
interest in access to mall. Note: this case did not raise
free speech or election issues, the court just rejected
pruneyard in dicta. Also, to my knowledge, the Indiana
Supreme Court has not spoken on the issue.
State Name: Iowa
Pruneyard Status: rejects
Citations: State v. Lacey, 465 N.W.2d 537-40 (1991)
Comments: doesn't really explain why they reject the doctrine
State Name: Massachusetts
Pruneyard Status: limited
Citations: Batchelder v. Allied Stores Intl., 388 Mass. 83, 445
N.E.2d 590 (1983)
Comments: based on election stuff in Mass. constitution.
Explicitly reserves free speech question. Note also
Commonwealth v. Hood, 389 Mass 581, 452 N.E.2d 192 (1983)
(the doctine does not apply to anti-nuke activists
leafletting in private laboratory), Commonwealth v. Noffke,
376 Mass. 127, 134, 379 N.E.2d 1086 (1978) (free speech
clause goes no further than federal. Cited and refused to
apply in Batchelder footnote)
State Name: Michigan
Pruneyard Status: rejects
Citations: Woodland v. Michigan Citizen's Lobby, 378 N.W.2d 337,
423 Mich. 188 (1985)
Comments: state action required for free speech and
initiative/election
State Name: Minnesotta
Pruneyard Status: rejects
Citations: State v. Wicklund, 559 N.W.2d 793 (Minn 1999)
Comments: state free speech no broader than fed
State Name: New Jersey
Pruneyard Status: accepts
Citations: State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980),
New Jersey Coalition v. J.M.B., 138 N.J. 326, 650 A.2d 757
(1994)
Comments: full pruneyard, no state action required. Main test
is the extent of the public invitation for noncommercial
purposes.
State Name: New York
Pruneyard Status: rejects
Citations: SHAD Alliance v. Smith Haven Mall, 66 N.Y. 496, 498
NYS2d 99, 488 NE2d 1211 (1985)
Comments: based on state action requirement for free speech
State Name: North Carolina
Pruneyard Status: rejects
Citations: State v. Felmet, 302 N.C. 173, 273 SE 2d 708 (1981)
Comments: "not so disposed" to expand speech protection was the
extent of their pruneyard analysis.
State Name: Ohio
Pruneyard Status: rejects
Citations: Eastwood Mall v. Slanco, 68 Ohio St. 3d 221, 626
N.E.2d 59 (1994)
Comments: state action requirement. However, injunction
prohibiting "all communication" is overbroad: speakers would be
permitted to chat about politics over lunch at the mall, but not
picket, leaflett, etc.
State Name: Oregon
Pruneyard Status: limited
Citations: Lloyd Corporation v. Whiffen, 315 Or. 500, 849 P.2d
446 (1993) (Referred to as Whiffen to distinguish it from
Lloyd Corp. v. Tanner.)
Comments: Based on initative and referendum provs, re:
signatures in mall, no decision on free speech question.
Oregon has perhaps the most developed Pruneyard doctrine.
See State v. Dameron, 853 P.2d 1287 (1983) (state must
prove that a trespass does not meet Whiffen test to get
criminal trespass, standard based on size and number of
people crossing property); Clackamas Town Center Associates
v. Wolf, 315 Or. 557, 849 P.2d 477 (1993) (discussing which
time place and manner restrictions can reasonably be imposed
by the shopping mall).
Fleshed out quite a bit by the intermediate appellate court.
See Stranahan v. Meyer, 153 Or. App. 442, 958 P.2d 854 (Or.
App. 1998) (Includes very comprehensive analysis of oregon
law in all opinions. FN ten of the dissent [p. 883] also
discusses the takings question in light of Loretto v.
Teleprompter. On that, see G.T.E. Northwest Inc. v. Public
Utility Commission, 321 Or. 458, 900 P.2d 495 (1995)).
State Name: Pennsylvania
Pruneyard Status: limited
Citations: Western Penn. Socialist Workers 1982 Campaign v.
Connecticut General Life Ins. Co., 515 A.2d 1331, 512 P.A.
23 (1984)
Comments: Commonwealth v. Tate, 432 A.2d 1382 (1982)
established pruneyard protection when a university invited
only speakers on one side of a public issue. Socialist
Workers limits the doctrine to exactly that situation: if a
private landowner creates a public forum and only allows one
side to speak, the other side is protected. If there is a
neutral "no political speech" policy (as in a shopping
mall), it's entirely enforceable.
State Name: South Carolina
Pruneyard Status: rejects
Citations: Charleston Joint Venture v. McPherson, 380 S.C. 145,
417 S.E.2d 544
Comments: S.C. protection is the same as federal, rejects
functional equivalency and endorses Lloyd.
State Name: Washington
Pruneyard Status: very limited
Citations: Southcenter Joint Venture v. Natnl. Dem. Policy
Committee, 113 Wash.2d 413, 780 P.2d 1282 (1989)
Comments: Alderwood v. Wash. Envir. Council, 635 P.2d 108 (1981)
accepted the doctrine, but was limited by Southcenter to
signature gathering for initative only.
State Name: Wisconsin
Pruneyard Status: rejects
Citations: Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832 (1987)
Comments: state action based
NOTES
A. There are several different standards used by the jurisdictions
that accept Pruneyard.
1. Functional Equivalence: If a shopping center (etc.) is the
functional equivalent of a town square/downtown area,
speech/petition there are protected. This test originates with
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc., 391 U.S. 308, 88 S.Ct. 1601 (1968) (deciding under U.S.
constitution, since overruled). It is used often by the Oregon
Court of Appeals, State v. Cargill, 100 Or. App. 336, 786 P.2d 208
(Or. App. 1990) aff'd by an equally divided court 316 Or. 492, 851
P.2d 1141, along with a bunch of others.
2. Character of the public invitation: if the public is invited
into a place for noncommercial purposes, speech/petition there are
protected. A version is used in Pennsylvania.
3. Character of the public invitation II: if the public is
invited into a place for the advantage of the owner, speech/petition
there are protected. This is also used in some Oregon precedent.
4. Size, crowds: If a shopping center is "large," and/or
"large numbers of people" use the area in question, speech/petition
there are protected. This is the main test used by the Oregon
Supreme Court.
B. Special cases.
1. Maryland has a single case, decided based on Marsh (well
before the subsequent Supreme Court cases, Logan, Lloyd, etc.),
which held that labor picketing of a nonunion store is
constitutionally protected. State v. Williams, 44 LRRM 2357, 37
CCH Lab. Cas. pg. 67515, para. 65708 (Md. Crim. Ct. 1959). As it
decided based on the U.S. constitution, it too would be overruled by
the cases overruling Logan. However, if the Maryland courts at the
time believed that the Maryland Constitution also covered this
circumstance (which they would, if they believed that it was
coextensive with the federal constitution), it may be that a
retraction in one does not necessarily imply a retraction in the
other. As such, this case may have some small value.
2. Texas has flirted with the doctrine, and at times,
dissenting judges have attacked it for no apparent reason, but has
never actually decided any case on this sort of facts. The closest
they have come to a decision on it is Republican Party of Texas v.
Dietz, 940 S.W.2d 90 (Tex. 1997) (political party not required to
sell ad space/provide convention booths to gay/lesbian group).
3. Hawaii rejected the doctrine on federal grounds, following
Lloyd, but did not address their state constitution. State v.
Marley, 509 P.2d 1095 (Ha. 1973). Note also that the doctrine would
not apply here even following states like New Jersey, as the
property trespassed on was the offices of Honeywell Corp. (the
defense contractor).
4. California may have expanded their doctrine to even include
grocery stores. It is not clear. At least one lower court issued
an injunction against a grocery store preventing petition signature
gatherers from using their premises. The CA Supreme Court tacitly
approved this decision, granting attorney's fees for the plaintiffs,
but did not address the merits. Press v. Lucky Stores, 6567 P.2d
704, 34 Cal.3d 311, 193 Cal. Rptr. 900 (1983).
--
Karsten M. Self <kmself at ix.netcom.com> http://kmself.home.netcom.com/
What part of "Gestalt" don't you understand? There is no K5 cabal
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