[free-sklyarov] 2600 Meetings?

[Paul Gowder]

Wendy said:
>The canonical case is from California in fact -- Pruneyard Shopping
>Center v. Robins.  The California Supreme Court held that petitioning in
>the privately-owned mall was speech protected by the California
>Constitution, and the U.S. Supremes affirmed.  By opening up the mall to
>general public activity, the owners created a public forum in which they
>couldn't then restrict particular speech, the California court said.
>Mileage may vary in other states.

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).





--
	-Paul Gowder

"It's because they're stupid. That's why everyone does everything."
     - Homer Simpson

	<paul at paultopia.net>

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