[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 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

    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

	Comments: full pruneyard, no state action required.  Main test
	    is the extent of the public invitation for noncommercial

    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


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/
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