California has a very odd view of property rights -- it seems that if you operate a business open to the public, you are subject to all the impediments placed upon government by the First Amendment. This means, of course, that if there are any "public areas" to the establishment, the public can come in and engage in speech that is detrimental to one's business or that or one's clients.

That leads to decisions like this one.

The California Supreme Court ruled Monday that privately owned shopping malls cannot stop protesters from demonstrating there to urge a boycott of one of the tenants.

In a 4-to-3 decision, the court said a San Diego mall violated California law protecting free speech when its owners barred protesters from distributing leaflets in front of one of the mallÂ’s stores, asking shoppers not to give the store their business.

“A shopping mall is a public forum in which persons may reasonably exercise their right to free speech,” Justice Carlos R. Moreno wrote in the majority opinion.

Justice Moreno said shopping malls were entitled to enact and enforce “reasonable regulations of the time, place and manner of such free expression,” to avoid a disruption of business.

“But they may not prohibit certain types of speech based upon its content,” he wrote, like speech urging a boycott of stores.

Thre are, of course, two points in this article that leap rapidly to mind.

1) Why the heck can't private property owners prohibit any or all speech -- including based upon content -- as a proper and legitimate exercise of their property rights?

2) Why has this case taken nearly a decade to percolate through the courts? After all, this is based upon a protest that took place in 1998!

But the bigger issue in my book is that a shopping mall is not a public forum -- it is a place of business to which the public is invited for the limited purpose of shopping. To the degree that groups are invited in for other purposes -- such as carolers in the central plaza or antique car shows or other such events -- that is done to facilitate the primary purpose of the shopping mall, which is the sale of tenant merchandise. And to require that the mall permit speech explicitly intended to disrupt that the primary purpose of the mall seems to be an outrageous infringement upon the property rights of the owners and the rights of their tenants.

Posted by: Greg at 03:37 AM | Comments (6) | Add Comment
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