Court Tells Mall That It Cannot Ban Customers From Talking To Strangers
from the chat-away dept
Apparently, a mall in California tried to put in place rules that barred people in the mall from approaching those they did not know and talking to them about anything other than shopping in the mall. It specifically disallowed:"approaching patrons with whom he or she was not previously acquainted for the purpose of communicating with them on a topic unrelated to the business interests."The goal was to prevent pitches and sermons and such -- and it was even used to make a "citizen's arrest" of a minister who was preaching at the mall. However, a court has rejected this rule, as a violation of free speech rights. Now, my first reaction to this was to wonder why a private corporation could be found violating free speech rights -- as the US Constitution only says that the government may not limit free speech -- private corporations can, indeed, limit speech. However, this was an issue having to do with California law, where the state constitution is a bit broader:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.It may seem ridiculous to try to limit speech within a mall, as noted by the following exchange during a deposition in the case:
"If you're going to talk about any other subject (other than the mall) ... then you're prohibited from going up to strangers and speaking to them, is that correct?" he was asked by a Snatchko attorney.As the Sacramento Bee noted in discussing this case:
"That's not correct," Farnam testified. "It doesn't prohibit you. It just means you have to come in and fill out the application for third-party access for noncommercial" speech.
What if, the attorney postulated, he is excited about the Super Bowl and says to a stranger, "Hey, hope you're supporting the Patriots," or "Hope you're supporting the Giants this week." Would that violate the rules? he asked.
"You can go in and again fill out a third-party access, if that's what a person chooses to do," said Farnam
Weather is a no-no, unless one is intuitive enough to observe how it may be affecting the size of the crowd at the mall. Teenagers who use the common areas for social gatherings, not necessarily limited to contemporaries they already know, are out of luck. Should someone stop you and ask directions to Sutter-Roseville Medical Center, you would be well advised to blow them off, lest your humanitarian instincts lead you astray.However, in the end, I still find this troubling. If the mall wants to have such a ridiculous policy, with such ridiculous results, why should the government stop them from doing so? I would imagine the mall has other rules for determining who is and who is not allowed to patronize the mall. What's wrong with letting the mall create such a silly policy?
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Filed Under: california, free speech, malls
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Can't find the case but ...
1) Malls have a weird status. They're private corporations, but they operate as pseudo-public places (that in fact, have replaced many actual publicly owned spaces). The theory is you act like a public space, you get treated as one. I'm not sure if courts have ever recognized this argument, but it's certainly been made.
2) Unenforceable contract - Unless there's a sign at the door saying "you may not enter unless you agree to XYZ terms," the mall may not be able to enforce its restrictions. Moreover, the fact they're enforcing their policy unevenly (I highly doubt someone talking about the weather is getting kicked out, no matter what they say) is not helping their case.
I'm not sure exactly how this translates into a free speech issue though.
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Re: Can't find the case but ...
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Re: Re: Can't find the case but ...
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Re: Can't find the case but ...
> like a public space, you get treated as one.
> I'm not sure if courts have ever recognized this
> argument, but it's certainly been made.
The first cases asserting free speech rights in privately owned shopping centers were successful. In the 1946 case of Marsh v. Alabama, the Supreme Court held that the business district of a privately owned "company town" was the same as a public street for First Amendment purposes, finding that "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." A 1968 case—Amalgamated Food Employees Union v. Logan Valley Plaza—held that a privately owned mall was the "functional equivalent" of the business district in Marsh.
But realizing they had overreached in the early cases, and sensitive to what they had done to private property rights, the Supremes reversed course in Hudgens v. NLRB, a 1976 case holding that the First Amendment guarantees no free speech rights in private shopping centers. And in an important 1980 case, Pruneyard v. Robins, the court upheld the general notion that citizens have no First Amendment rights to express themselves in privately owned shopping centers.
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Re: Re: Can't find the case but ...
Pruneyard, however, involved not the First Amendmentlimitation on federal action, but the California Constitution guarantee of free speech, a guarantee broader than the First Amendment (which is perfectly permissible).
In any event, this is a free speech case under the California Constitution's provisions re free speech, and with the long established legal principle that shopping malls are general (i.e., there can be limted exceptions that do not appear to apply here) deemed to be quasi-public in nature and California's free speech provision applies with equal force.
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Re: Re: Re: Can't find the case but ...
> Amendment limitation on federal action
Actually, it did. If the case were only about the California Constitution, it would never have entered the federal system in the first place and would not have ended up at the Supreme Court.
The challenge under the U.S. Constitution's 1st Amendment was denied. The Court reiterated that there are no 1st Amendment rights on private property under the U.S. Consitution, but they acknowledged that California provided greater protections for free speech and they were legitimate.
So while the plaintiffs lost their 1st Amendment challenge, they ultimately won the case nevertheless.
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Re: Re: Re: Re: Can't find the case but ...
The more fundamental aspect of cases such as Pruneyard is the treatment of most shopping malls as quasi-public places, in which case constitutional provisions come to the fore.
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Re: Re: Re: Can't find the case but ...
So if you are not selective on admission, you cannot be selective on ejection - if you wish to eject one, you have to eject all. In such a case only police can be selective.
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Re: Re: Re: Re: Can't find the case but ...
The difference between a street corner or public park and the mall is that generally there are no restrictions on when you can be on the street corner.
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Re: Re: Re: Re: Re: Can't find the case but ...
If you require the ability to eject specific individuals you should individually admit them (tickets or doorman say). If you admit the public (everyone/anyone) without consideration then you cede your premises to public occupation until such time as you wish to cease it. In such a case you lose the ability to pick and choose who you eject - you can only eject everyone as in "Ok folks, the mall is now closed to the public. Everyone leave". That's not to say you can't ask specific individuals to leave - or call the police to remedy matters.
At some point the situation changes from a collection of individual guests on private premises to the public on private premises. You can't have it both ways - invite the public, then eject unwanted guests.
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Re: Can't find the case but ...
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Re: Re: Can't find the case but ...
You respond to a post which laments the lack of finding a reference case which might shed some light upon this subject ..... with a flip "according to the law" statement.
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Re:
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Here Is The Case:
http://www.firstamendmentcenter.org/news .aspx?id=23271
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cant stand being bothered by people pushing XYZ religion on me as I walk past, or people pushing their product or whatever, having nothing to do with the mall, I absolutely would like them to get expelled from the mall, mall is a private property entity, not a public has the right to be there
as long as your conversation has no solicitation in it, talk to strangers if you want, I dont talk to strangers tho, I ignore them and move on
unless shes hot, but then again, she wants something if shes talking to me
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What's troubling?
Just because you've permitted people on your premises that doesn't mean they become your puppets or playthings. You can eject them, but that doesn't mean you can do what you like to them if they remain, e.g. gag them, punish them if they sing, get them to stand on one leg, etc.
Privacy is the natural right to exclude others, not to have power over them as if property.
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Re: What's troubling?
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What Laws Are For
They should not exist to try to protect people from themselves.
If a mall wants to do something stupid and put itself out of business, then let it do that. That’s not the kind of business you want to keep around anyway.
If the recording industry wants to stick to their old ways while the rest of the world adopts new technologies and business models, let them do that.
Don’t force the rest of us to pay for their idiocy/laziness.
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Re: What Laws Are For
Would people like to get arrested for that?
Free speech is a nuisance to some people that is the price to pay for it, what is better to be annoyed or to be gagged?
Or will you got get a permit for speaking in the premises everytime you let out an opinion like the one you just write there, because is that what you are giving up.
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Re: Re: What Laws Are For
But I think it’s just as stupid for the courst to be telling a private business what rules it can and can’t impose on people who are on the company’s property.
If the customers have a problem with the rule they will shop elsewhere, and the mall will either revise its position or go out of business. No need for any intervention.
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Re: What Laws Are For
What's sad is that people are mad at the Record Companies and are succeeding only in taking it out on the recording industry (and let me point out that most of these people are too young to actually have a complaint about the industry. It's lame to justify refusal of payment to current artists because labels ripped off *other* artists in the past. Or do you want to be held responsible for all your ancestors' actions?). It's not the engineer's fault that a decent mic costs $1000s of dollars, that the preamp to push it can cost just as much, that a professional mixing console can run up to a MILLION dollars easy. And it's not an inflated cost issue, studios cost thousands to run because the physical equipment is incredibly specialized. Personally, I don't want to live without beautiful recordings, and I've been doing it myself at home for long enough to know that amazing results are not going to come out of people's bedrooms. It's acoustic science.
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Nice sentence
I am the only one who thinks that is so stupid that it sounds like a US-approved patent?
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Re: Nice sentence
(That would be http://www.dumblaws.com)
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Re: Re: Nice sentence
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Re: Nice sentence
Which just goes to show that "The Government" isn't the only entity capable of stupidity on a massive scale.
So, when you are complaining about "The Government", remember that you'll get not relief from stupid boondoggles by turning to "business", "small business" or your "local community".
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Re: Re: Nice sentence
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Add to that I cant stand corporations or salesman coming up to me trying to sell double glazing, or new Kitchins I not interested in not to mention charity people trying to get you to sign up to giving them money. To me they are never going to get me to buy or give and i leave them with no doudt about that. So the mall can ban speach of any kind as long as it not mine.
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They made a bad rule
Covers people screaming at the top of their lungs about something, does not cover people asking about the weather or "did you see that airplane that hit a building?" (is there a Godwin equivalent for that yet?).
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I want to flirt; would you wait there while I go fill out a form to get permission to do so?
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Re: I want to flirt; would you wait there while I go fill out a form to get permission to do so?
I think "The way your eyes reflect the color of the Cinnabon sign is very beautiful" is acceptable.
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How are they going to enforce it?
-C
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Wonderful....
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Re: Wonderful....
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Just my $0.02
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Re:
They can, however, tell you to get off their property for any reason or no reason (unless in violation of federally or locally mandated racial or gender or handicap tolerances). And if you don't, then it can involve the police. That's why you see picket lines outside of the property they are picketing.
They cannot detain you just for violating private rules, and that is what this trial should have been about (if it wasn't already).
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Re: Re:
Don't forget religious.
But isn't the reason for this fundamentally the same reason they shouldn't be able to expel for the purpose of censorship of free speech? Should I be able to manipulate what people are can talk about simply because I am able to entice them into wanting to stay on my property?
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Re: Re: Re:
Sure. Why not? People make trade offs all the time. You can control people talking in the movie theater because they want to stay to see the movie. You can control employees badmouthing your company because they want to keep their job.
Most people don't like such restrictions, so they'll leave of their own accord if you're very zealous in pursuing them.
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I honestly don't really care personally. I just don't see the logic that makes the rules against discrimition apply on private property, and the rules protecting free speech don't.
Most people would probably have no idea that the mall has this policy at all. I'm sure in reality they would only use it as an excuse (which they don't need anyway) to get rid of the mallrats they don't like.
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Re:
No. Or, at least, not necessarily. If I want to create a pleasant environment in my home, store, mall, etc., it might be a good idea to expel the, e.g., Nazi recruitment guys and the fur-is-murder protest guys.
Of course I can't stop you from saying whatever you want in public or in your own home, but I can tell you to get the hell off my property.
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That seems problematic to me, and may have seemed problematic to the court, as well.
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Re:
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Mike's Missed Point
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Private/Public Property
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The mall is *not* private property; it's a place of business.
"why should the government stop them from doing so?" -- Because it's a proper function of gov't to protect the public from exactly such abuses as this. CORPORATIONS DO NOT HAVE SUPER-RIGHTS THAT ABRIDGE OURS. -- Your question simplistically assumes that one can go down the street to a mall that doesn't have such a policy. But if one mall gets this authoritarian step put over as de facto law, *all* will adopt it, and then you'll be *forced* to endure "corporate policy", though you'd in theory still be "free". -- By the way, plans *are* in progress to "privatize" all public property including roads and water supplies. For your own interests, always oppose increases of corporatism.
Oh, and the applications of these principles to web-sites may not have occurred to you.
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Re: The mall is *not* private property; it's a place of business.
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Re: Re: The mall is *not* private property; it's a place of business.
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Re: The mall is *not* private property; it's a place of business.
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Re: Re: The mall is *not* private property; it's a place of business.
Unless you're black, gay, or some other group that has clearly experienced blanket discrimination in a community.
In this case, I do believe that the policy would be self-limiting (Especially with an arrest; who the hell is going to shop there now?), but your statement is not true overall.
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Mall Law
1. Ask him to leave. He leaves or you call the real cops, who arrest him for actual trespassing, and he gets in trouble with the law, not you.
2. Ask him to leave. If he doesn't, you call the Mall Cops to arrest him for breaking Mall Law and put him in Mall Jail. Now you're the one that's in trouble, because the Real Cops and Real Law don't particularly like someone else horning in on their racket.
So you save the heroics for the preacher who's actually beating the customers with the Bible, or knocking over the ATMs.
Although, I understand it's much safer in terms of "cuffing and stuffing" to go after the non-violent guy. Same high, less risk, right?
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i have an idea
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The point is, the government absolutely cannot help enforce such policies. That is, such policies should be rendered unenforceable by anyone. So that "citizen's arrest?" Unlawful confinement. Citizen's arrest requires a crime, and here none was committed.
It is not strange for governments to put limitations on how corporations can treat customers. In much of Canada, and I believe some states, there are laws against mandatory arbitration clauses (that is, they are unenforceable). There should be some things you just aren't able to agree away to anyone. "If you enter our store you agree to give us your first born." Private business does not equal, "We can do whatever we want yadda yadda free market yadda yadda consumer choice."
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Again with the 2 evils!
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Arrest
> a silly policy?
What's wrong with it is that they're apparently taking it to such extremes that they're conducting "citizens arrests" on people who violate it.
I shouldn't have to be subjected to some overzealous high school dropout with a power-trip working as a mall cop putting his hands on me, handcuffing me, calling the police, pressing charges, etc. just because I stopped to chat with a pretty girl or ask someone directions to the nearest gas station.
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Re: Arrest
Don't go to that mall and you won't be subjected to anything. That's the point I think Mike is making. If the mall has this silly policy in place, fewer people will go there and the tenents and mall owners will suffer the consequences. It's called a "free market."
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What if ...
"Sorry, you'll have to fill out the application for third-party access for noncommercial speech first."
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I want to visit Nazi Mall.
If that doesn't work, they could always start their own blog to have control over their users!
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I want to visit Nazi Mall.
If that doesn't work, they could always start a blog to have control over little peon users!
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Hmmm...
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Re: Hmmm...
-> Megalomania
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Not so strange
However, a few states, including but not limited to California (for example, New Jersey and Oregon), have decided to apply Marsh-like reasoning to free speech in shopping malls. In fact, when California adopted its constitution, it was clear that some constitutional rights not just the right of free speech but the right of privacy as well, were intended to protect against private as well as public limits. The US Supreme Court decided in Pruneyard Shopping Center v Robins (1980) that states were free to take this position under their own laws and constitutions, even though the First Amendment is largely limited to protecting against state action.
To my mind, the fact that other malls allow free speech activities and hence might "compete" in the market for consumers wanting to receive speech messages, is not a satisfactory response. The First Amendment does not allow City A to suppress speech on the ground that the protestors can always go talk in City B. Similarly, California should be allowed to extend its constitution to provide that all malls must allow protest speech.
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The mall's right to be private, notwithstanding its public nature
GREGG DesELMS's RESPONSE: Nothing's wrong with it as long as the mall is considered -- not only as a matter of law, but as a practical matter, as well -- a completely private place. But with the ubiquity of mall space in America has come its transformation, albeit involuntary, into a part of the public town square. And in THAT place, protected speech may not be silenced. As a PRACTICAL matter, the Court was correct.
______________________________________
Gregg L. DesElms
Napa, California USA
gregg at greggdeselms dot com
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Except in this case, we didn't actually have to spend a ridiculous amount of money to get that done.
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