Every since the Pruneyard decision, public shopping malls have been seen as an extension of the public square. Although the property is private, protesters have free speech rights granted by the U.S. and California Constitutions. This can create problems for landlords who are trying to provide a pleasant retail environment for their guests and tenants. Recent case law has changed the rules, but Allen Matkins has created a set of model rules for shopping center landlords. These rules address the time, place and manner issues upon which free speech can be limited in shopping malls.

1. Private Shopping Malls –
The “Not-So-Private” Private Property

2. Agenda
General Overview of the Issues
Relevant Case Law
Common Legal Challenges to Rules
Key Elements of Allen Matkins’ Rules
Litigation and Enforcement Tips

3. Protesters have become increasingly
active at private shopping centers
Unions
Organizations
supporting specific
rights (i.e., pro-life,
animal rights)
Religious groups
Solicitation of funds
Political
organizations &
causes

4. Protest activities at shopping centers can be
disruptive to business
Picketing
Shouting
Chanting
Displaying disturbing
images
Using inflatable
objects
Approaching
shoppers
Passing out fliers
Seeking signatures

5. Free-speech rights in the U.S. Constitution
“Congress shall make no law
…abridging the freedom of speech…”

6. Free-speech rights in the California Constitution
“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.”

7. Free speech rights under California Constitution
have been broadly interpreted, at the expense
of private property rights
U.S. Constitution: right of free speech has limited applicability
to private shopping centers
State Constitutions: may grant broader free speech rights than
the US Constitution
 California courts have expanded free speech rights at
private shopping centers

8. Free speech rights may trump private property rights if
the property can be characterized as a “public space”
Legal Arguments
Owner invites public onto property and
surrenders a level of control
Shopping centers serve a role
tantamount to public space
Public Policy Arguments
Suburban growth has changed how we
organize cities and create public spaces
Private shopping centers have replaced
downtowns as the public gathering places

9. General Overview of California Case Law
Over the past 30 years, California courts have significantly expanded
free speech rights at the expense of private property rights
Cases can be broken into three periods:
– Early cases before Robins v. Pruneyard (1979)
– Cases after Robins v. Pruneyard
– Cases after Fashion Valley (2007)
 This expansion is contrary to almost every other state

10. Early Cases Before Robins v. Pruneyard
Marsh v. State of Alabama, 326 U.S. 501 (1945)
– Company town served as a public forum
– Free speech rights trumped private property rights
Lloyd Corp v. Tanner, 407 U.S. 551 (1972)
– War protesters not allowed to leaflet within an indoor mall

11. Significance of Robins v. Pruneyard
23 Cal.3d 899 (1979)
Free speech rights may trump private property rights
Reasonable time, place and manner restrictions may be
imposed by shopping center owners
 First sea change in California law related to free
speech rights at private shopping centers

12. Levels of judicial scrutiny depend upon type of
speech
For any content-based speech restriction, it's subject to strict
scrutiny, requiring that it be:
i. narrowly drawn, and
ii. necessary to serve a compelling interest
For any content-neutral speech restriction, it must satisfy
intermediate scrutiny, requiring that it be:
i. narrowly tailored
ii. serve a significant government interest, and
iii. leave open ample alternative avenues of communication

13. Cases after Robins v. Pruneyard
H-CHH Associates v. Citizens for Representative
Government, 193 Cal.App.3d 1193 (1987)
– Case highlights what shopping center rules should not do
– Court held in favor of petitioners, detailing specific reasons as
to why the mall’s rules were and were not constitutional
Needletrades Union v. Superior Court, 56 Cal.App. 4th 996 (1997)
– High-water mark for shopping center owners
– Court held that rules are constitutional, specifically those for (1)
application requirement, (2) protest materials restriction, and (3)
time and place restrictions on activities

14. Fashion Valley Mall v. NLRB 42 Cal. 4th 850 (2007)
Mall rule prohibited any leafleting targeting its tenants
The Court ruled in favor of union leafletters, holding that the
mall’s rule was illegal because it was a content-based
restriction that did not survive strict scrutiny
 Second sea change in California law related to free
speech rights at private shopping centers

15. Cases After Fashion Valley
United Brotherhood of Carpenters v. National Labor Relations Board,
540 F.3d 957 (2008)
– Court ruled in favor of union leafleters
– Limited six standard types of rules used at shopping centers
Matthew Snatchko v. Westfield, 187 Cal.App.4th 469 (2010)
– Court ruled in favor of a pastor discussing religion with strangers
– No content-based restrictions
Best Friends Animal Society v. Macerich, 193 Cal.App.4th 168 (2011)
– Court ruled in favor of protesters opposing a pet store
– Shopping center rules cannot expressly favor certain types of speech

16. Common legal challenges to rules
Content: restriction based on content of speech
 Avoid any type of content-based restriction (strict scrutiny)
Location: activities limited to certain areas
 Allow protesters to locate within a safe distance of their target
Display type: restrictions on types of displays
 Use restrictions tied to violations of law
Time: access restricted on certain days of the year
 Avoid complete bans

17. Landlords may end up fighting a two-front
battle…
Protesters vs. Owners Tenants vs. Owners
Protesters may file suit against Tenants may file suit against
owners alleging violations of their landlords for failing to protect their
free speech rights leasehold rights by allowing
protests
Courts and law enforcement have
sided with free speech Owners, as landlords, have
contractual obligations to tenants,
such as the covenant of quiet
enjoyment

18. SOLUTION:
ALLEN MATKINS MODEL
TIME/PLACE/MANNER POLICY

19. What is the
Allen Matkins Model Time/Place/Manner Policy?
Model rules that landlords can use to impose reasonable
restrictions on the time, place and manner of non-
commercial expressive activity
Rules have been crafted to
comport with California law
Designed to provide the
greatest level of protection to
shopping center owners
Rules must be customized for
the particular site/circumstances

20. Disruptive or non-conforming protests may be
legally restricted
• Blocking entrances or exits
• Harassing customers – Physical not permitted, verbal statements have wide
latitude, except imminent threats
• Property damage
• Disorderly conduct
Fights
Weapons
Excessive capacity/hazards
Potter Stewart Test
• Offensive verbal statements
are likely permitted

21. The law is tilted in favor of speech rights but the
landlord has some remedies
Injunction Temporary Restraining Order (TRO)
Most common remedy, yet difficult to Can be obtained on emergency basis
obtain given First Amendment if necessary
protections Followed by preliminary and/or
Court will balance likelihood of permanent injunction
success with likelihood of harm
Must be no more restrictive than
necessary to ensure conformance
with law or proper TPM restrictions
Must be content neutral

22. “Damages” is another legal
option for landlords
Theories
– Trespass Theory – Beyond allowed purpose
– Nuisance Theory
– Intentional Torts
Can be pursued after, in lieu of, or in conjunction
with injunction remedy
Collectability will be a concern
– Association can be sued but assets may be limited
– Individual protesters may not be identifiable
 Expect strong resistance
Anti-SLAPP law creates numerous obstacles

23. Practical considerations
Use judgment
– No “one size fits all” remedy
Identify and discuss with group leader
– Look for resolution that satisfies immediate needs
Contact police
– Especially for disruptive or dangerous situations
Consider legal options
– Legal options are slower, even “emergency”
relief may take several days to obtain
– Police will enforce injunction if necessary
Closely document improper activity
– Photos, videos may be necessary evidence

24. We recommend that the
landlord post signs at
shopping centers

25. We recommend that the
landlord post signs at
shopping centers

26. Contact
Matthew Marino Sean Southard
Partner Partner
Allen Matkins Leck Gamble Mallory & Allen Matkins Leck Gamble Mallory &
Natsis LLP Natsis LLP
mmarino@allenmatkins.com ssouthard@allenmatkins.com
Jonathan Lorenzen
Associate
Allen Matkins Leck Gamble Mallory &
Natsis LLP
jlorenzen@allenmatkins.com