Savage v. Trammell Crow Co.

On the following day, Savage spoke with Brenda Foster, an employee of defendant Trammell Crow Company, Inc. (Trammell Crow). Trammell Crow manages the shopping center. According to Savage, Foster told him she would not permit him to distribute his gospel tracts in the parking area of the shopping center and that the policy was her policy.

On June 2, 1989, Savage filed a complaint against Trammell Crow and the security service for the shopping center, defendant Heritage Security Services, Inc. (Heritage). The complaint alleged the defendants’ conduct violated Savage’s constitutional rights.

On the same day Savage filed his complaint, the superior court issued an order to the defendants to show cause why a preliminary injunction permitting Savage to distribute his tracts should not issue. In particular the order stated the defendants would be restrained from the “threatened arrest, arrest, [harassment], and prosecution of plaintiff for distribution of religious tracts in parking areas of Del Norte Plaza Shopping Center.”

In response to the order to show cause, Trammell Crow submitted the declaration of one of its partners, Ron Burns. Burns stated Del Norte Plaza had certain “ ‘Rules and Regulations Relating to Use of Shopping Center Property for Purposes of Political Expression.’ ” According to Burns’s declaration, the rules and regulations provide in part: “ ‘These rules shall not, by implication or otherwise, be deemed or construed to permit any activity other than Political Expression [as defined], and the owners of the center reserve the right to prohibit any activity other than that specifically described in these rules.’ ” Burns’s declaration further stated that the term “political expression” is defined by the rules and regulations as “ ‘activities ... in obtaining signatures to any petition directed to any governmental or other political body or in disseminating political information.’ ”

With respect to leafletting in the parking lot, Burns stated: “We have consistently prohibited the distribution of leaflets, flyers and handbills in the parking lot, and we have uniformly applied that prohibition.” A letter Burns sent to one of the center’s tenants stated: “I am writing in regard to your [run-in] with Center Security on April 16, 1989 when flyers were being placed on vehicles in the parking lot. [¶] . . . Section 16, Paragraph 3 (Common Areas) of the Lease gives the Landlord the right to ‘establish and enforce reasonable rules and regulations applicable to all tenants concerning the maintenance, management, use, and operation of the common areas’. [¶]My policy on flyers is that they are prohibited.” The letter was attached to Burns’s declaration.

The trial court heard argument on the order to show cause on July 7, 1989, and refused to issue the preliminary injunction.

On July 17, 1989, Savage submitted to the court a motion for rehearing in which he alleged the judge who heard the order to show cause, Hon. Robert J. O’Neill, was a Roman Catholic and therefore biased against him and his efforts to spread the gospel.

Judge O’Neill heard argument on the demurrer on July 26, 1989, and sustained it without leave to amend. On the same day Judge O’Neill entered an order denying Savage’s motion for rehearing.

Immediately following the hearing on the defendants’ demurrer, Savage filed a notice of appeal from the order denying the preliminary injunction, the order sustaining the demurrer and the order denying his motion for rehearing.

An order dismissing the complaint was entered on August 16, 1989.

Discussion

Preliminary Injunction

A. The Parking Lot Prohibition

The order to show cause which Savage filed asked the trial court to grant him the right to distribute religious tracts “in parking areas of Del Norte Plaza Shopping Center.” Burns’s declaration, submitted in opposition to the preliminary injunction, states: “A primary reason why . . . distribution [in the parking lot] has been prohibited is because of the litter which inevitably results when hundreds of flyers are distributed by one or more groups. This prohibition has been uniformly enforced regardless of the nature or contents

In extending the liberty of speech clause to private shopping centers, the court in Robins stated: “By no means do we imply that those who wish to disseminate ideas have free rein.” (23 Cal.3d at p. 910.) Rather the court found that property owners may regulate the time, place and manner of such activity, (ibid.) Indeed because of the owners’ ability to regulate expressive activities, the court reasoned any intrusion on private property rights was limited. “ ‘A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations [citations] would not markedly dilute defendant’s property rights.’” (Id. at p. 911.)

In giving private property owners the right to establish “time, place and manner” rules, the court used the same formulation it had employed in describing the power government possesses with respect to public forums and the conduct of activities protected by the First Amendment. (See e.g. Dulaney v. Municipal Court (1971) 11 Cal.3d 77 , 84-85 [ 112 Cal.Rptr. 777 , 520 P.2d 1 ]; Dillon v. Municipal Court (1971) 4 Cal.3d 860 , 869-870 [ 94 Cal.Rptr. 777 , 484 P.2d 945 ]; see also In re Hoffman (1967) 67 Cal.2d 845 , 852-853 [ 64 Cal.Rptr. 97 , 434 P.2d 353 ].) As the court in Dulaney v. Municipal Court explained, that formulation and the guidelines which our Supreme Court has developed for its use were “fashioned from a long line of United States Supreme Court cases.” (11 Cal.3d at p. 84, fn. omitted.)

Thus, although Savage’s right to engage in expressive activity at shopping centers is found solely in the broader protection provided by California’s Constitution, a shopping center’s power to impose time, place, and manner restrictions on such activity is nonetheless measured by federal constitutional standards. “In essence, Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d 899 , in affirming a shopping center owner’s right to impose reasonable time, place and manner restrictions on petitioning activity, recognized in the owner important rights of substance; those rights are identified as freedom from disruption of normal business operations and freedom from interference with customer convenience. However, despite plaintiffs’ characterization to the contrary, Robins did not establish a new standard of

Accordingly, we note “even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ (Clark v. Community for Creative Non-Violence, 468 U.S. 288 , 293, 104 S.Ct. 3065 , 3069, 82 L.Ed.2d 221 (1984); see Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 , 648, 101 S.Ct. 2559 , 2564, 69 L.Ed.2d 298 (1981) (quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 , 771, 96 S.Ct. 1817 , 1830, 48 L.Ed.2d 346 (1976)).” (Ward v. Rock Against Racism (1989) 491 U.S. 781 , 791 [ 105 L.Ed.2d 661 , 675, 109 S.Ct. 2746 ]; see also Dulaney v. Municipal Court, supra, 11 Cal.3d at p. 88; Dillon v. Municipal Court, supra, 4 Cal.3d at p. 869; H-CHH Associates v. Citizens for Representative Government, supra, 193 Cal.App.3d at pp. 1207-1208.) Trammell Crow’s parking lot restriction meets each of these requirements.

1.

“The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. [Citation.] The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” (Ward v. Rock Against Racism, supra, 491 U.S. at p. 791 [105 L.Ed.2d at p. 675, 109 S.Ct. at p. 2754].) In this case the ban on leafletting in the parking lot is based in Burns’s concerns about littering and interference with ingress and egress from the center. Plainly these concerns are unrelated to the message any particular leafletter is attempting to convey.

We recognize that a regulation which is not explicitly content related may nonetheless be invalid if the regulation provides officials with unbridled discretion in enforcing it. (Ward v. Rock Against Racism, supra, 491 U.S. at p. 792 [105 L.Ed.2d at p. 676, 109 S.Ct. at p. 2755].) Such unbridled discretion permits a decision to be based impermissibly on the

2.

In addition to being content neutral, the parking lot ban is also narrowly tailored to meet a significant interest of the shopping center. Our courts have consistently recognized a property owner’s interest in controlling litter and traffic. (See H-CHH Associates v. Citizens for Representative Government, supra, 193 Cal.App.3d at p. 1213: litter problem may justify limitation as to place; In re Hoffman, supra, 67 Cal.2d at p. 853: “Persons can be excluded entirely from areas where their presence would threaten personal danger or block the flow of passenger or carrier traffic, such as doorways and loading areas.”)

Moreover, in determining whether a regulation is narrowly drawn, the United States Supreme Court has held we must give some deference to the means chosen by responsible decisionmakers. (Ward v. Rock Against Racism, supra, 491 U.S. at p. 798 [105 L.Ed.2d at pp. 679-680, 109 S.Ct. at p. 2757].) “Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate content-neutral interests but that it need not be the least-restrictive or least-intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ United States v. Albertini, 472 U.S. 675 , 689, 105 S.Ct. 2897 , 2906, 86 L.Ed.2d 536 (1985); see also Community for Creative Non-Violence, supra, 468 U.S. at 297 , 104 S.Ct at 3071 . To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. SeeFrisby v. Schultz, 487 U.S., at _, 108 S.Ct., at 2502 (‘[a] complete ban can be narrowly tailored but only if each activity within the proscription’s scope is an appropriately targeted evil’). So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. ‘The validity of [time, place, or manner] regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most

We also note, “[T]he validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.” (Ward v. Rock Against Racism, supra, 491 U.S. at p. 801 [105 L.Ed.2d at p. 682, 109 S.Ct. at p. 2759]; see also Heffron v. Int’l Soc. for Krishna Consc. (1981) 452 U.S. 640 , 653-654 [ 69 L.Ed.2d 298 , 309-311, 101 S.Ct. 2559 ].) Thus, a regulation must be judged by considering all the groups who would have access to a particular forum and the regulation is valid so long as the property owner could reasonably have determined that its interests overall would be served less effectively without the regulation. (Ward v. Rock Against Racism, supra, 491 U.S. at p. 799 [105 L.Ed.2d at p. 681, 109 S.Ct. at p. 2759].)

Judged in light of these principles, Trammell Crow’s parking lot ban is appropriately tailored to meet the center’s interests. Burns, the responsible decisionmaker, could reasonably conclude, as he did, that without the ban the litter and traffic burden created not just by Savage, but by the center’s merchants and other political or religious groups, would make the parking lot unsightly, inconvenient and unsafe for the center’s patrons. (See Heffron v. Int’l Soc. for Krishna Consc., 452 U.S. 640 , 654-655 [69 L.Ed.2d at pp. 310-311].)

3.

The parking lot ban on leafletting is especially appropriate in light of the fact Burns’s policy does not prevent leafletting on the center’s sidewalks. Thus, Savage and other leafletters are not prevented from reaching the center’s patrons; rather, they are merely required to hand their leaflets out in person as opposed to placing them on cars.

While we do not doubt access to the parking lot would allow greater and easier distribution of leaflets, the adequacy of alternative channels is not measured by the fondest hopes of those who wish to disseminate ideas. (See Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288 , 295 [ 88 L.Ed. 221 , 228, 104 S.Ct. 3065 ].) Rather, where, as here, an advocate is

We recognize courts have distinguished certain types of speech as being entitled to less protection under the First Amendment. Thus it has been stated that “Not all speech receives the same degree of constitutional protection. ‘[O]bscene material is unprotected by the First Amendment.’ (Miller v. California (1973) 413 U.S. 15 , 23 [ 37 L.Ed.2d 419 , 430, 93 S.Ct. 2607 ].) And the Constitution ‘accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.’ (CentralHudson Gas & Elec. Corp. v. Public Serv. Comm'n (1980) 447 U.S. 557 , 563 [ 65 L.Ed.2d 341 , 349, 100 S.Ct. 2343 ].) Freedom of ideological expression, on the other hand, is a central First Amendment value. ‘Ideological expression, be it oral, literary, pictorial, or theatrical, is integrally related to the exposition of thought—thought that may shape our concepts of the whole universe of man.’ (VA. Pharmacy Bd. v. VA. Consumer Council (1976) 425 U.S. 748 , 779 [ 48 L.Ed.2d 346 , 369, 96 S.Ct. 1817 ] (cone. opn. of Stewart, J.) quoted, Metromedia, Inc. v. San Diego [(1981) 453 U.S. 490 ,] 505, fn. 12 [ 69 L.Ed.2d 800 , 813].)” (City of Indio v. Arroyo (1983) 143 Cal.App.3d 151 , 157-158 [ 191 Cal.Rptr. 565 ], italics added.) The defendants have not cited, and we have been unable to find, any case which creates any differential between the protection afforded religious expression and the protection provided for political activities.

Indeed, the facts in cases which enforce California’s liberty of speech clause demonstrate no material distinction between the political and religious nature of expression. For instance in Robins itself the student plaintiffs were attempting to solicit support for “Zionism.” According to the American Heritage Dictionary (1976) page 1489, “Zionism” is “A plan or movement of the Jewish people to return from the Diaspora to Palestine.” Despite the obvious religious element of their activity, the Supreme Court held the students had the right to circulate a petition opposing a United

More importantly the defendants’ interpretation of Robins would place it at odds with the federal Constitution. After our Supreme Court decided Robins, the property owners appealed to the United States Supreme Court and the court agreed to hear their appeal. In Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 [ 64 L.Ed.2d 741 , 100 S.Ct. 2035 ], the Supreme Court affirmed the judgment in Robins, finding that although under its earlier opinion in Lloyd Corp. v. Tanner, supra, 407 U.S. 551 , California was not required to give the students access to the shopping center, California could, in exercising its police powers, require greater access than mandated by the federal constitution. (447 U.S. at p. 81 [64 L.Ed.2d at pp. 751-752.) However, the court was careful to point out the state’s power to impose such burdens on the use of private property could not “amount to a taking without just compensation or contravene any other federal constitutional provision.” (Id. at p. 81 [64 L.Ed.2d at p. 752], italics added.) As we have seen, under Widmar v. Vincent, supra, 454 U.S. at page 277 [70 L.Ed.2d at page 452], although the state may not be required by the Constitution to provide a forum for the exercise of free speech rights, when it does provide such a forum, as California clearly has, it may not restrict use of the forum on the basis of the religious content of a speaker’s message. Under the defendants’ interpretation of Robins, however, that is precisely what our Supreme Court created: a forum which permits expression of political ideas, but not religious ones. We reject such an interpretation.

Finally, as we have noted, the court in Robins carefully considered the burdens it was placing on the operators of shopping centers and gave them the power to regulate the time, manner and place of free speech activities. (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at pp. 910-911.) There is nothing in this record, however, which suggests the burden imposed by unpopular religious expression is any greater than the burden created by unpopular political expression. Indeed it is difficult to imagine how Savage’s gospel tracts would create any greater