Opinion
5-25-1970
Roger Jon DIAMOND et al., Plaintiffs and Appellants, v. Frank BLAND Sheriff of San Bernardino County, et al., Defendants and Respondents. Civ. 10084.
Roger Jon Diamond, Pacific Palisades, for plaintiffs and appellants. Lonergan, Jordan & Gresham, and Allen B. Gresham, San Bernardino, for defendants and respondents Homart Development Co., James Lambert and C. H. Barrettt. Stanford D. Herlick, County Counsel, and Paul A. Grube, Jr., Deputy County Counsel, for defendants and respondents Frank Bland and Lowell E. Lathrop, Sheriff and District Attorney, respectively, of San Bernardino County. Ralph Prince, City Atty., for defendants and respondents Mayor Al C. Ballard and Chief of Police Louis J. Fortuna of City of San Bernardino. Lawrence M. Cohen, by comity, for defendants and respondents.
Roger Jon DIAMOND et al., Plaintiffs and Appellants,
v.
Frank BLAND Sheriff of San Bernardino County, et al., Defendants and Respondents.
May 25, 1970.
For Opinion on Hearing, see Cal.Rptr. 501, 477 P.2d 733.
Roger Jon Diamond, Pacific Palisades, for plaintiffs and appellants.
Lonergan, Jordan & Gresham, and Allen B. Gresham, San Bernardino, for defendants and respondents Homart Development Co., James Lambert and C. H. Barrettt.
Stanford D. Herlick, County Counsel, and Paul A. Grube, Jr., Deputy County Counsel, for defendants and respondents Frank Bland and Lowell E. Lathrop, Sheriff and District Attorney, respectively, of San Bernardino County.
Ralph Prince, City Atty., for defendants and respondents Mayor Al C. Ballard and Chief of Police Louis J. Fortuna of City of San Bernardino.
Lawrence M. Cohen, by comity, for defendants and respondents.
OPINION
GARDNER, Associate Justice.
This is an appeal from a judgment denying preliminary and permanent injunctions entered in the Superior Court of San Bernardino County.
All parties agree that this is a case of first impression. It presents the following constitutional question: May the owners of a privately owned shopping center deny the use of their premises to those who desire to use those premises for First Amendment purposes and activities unrelated to the business of the Center?
We hold that they may.
Plaintiffs are People's Lobby, Inc., a nonprofit California corporation, which at the time of the incident giving rise to this litigation was engaged in securing signatures on two anti-pollution initiative petitions; Roger Jon Diamond, attorney for People's Lobby, Inc.; and William Duxler, a volunteer petition carrier for People's Lobby, Inc.
Defendants are Homart Development Company which owns and operates a shopping center in the City of San Bernardino known as the Inland Center; C. H. Barrett, its security guard; James Lambert, its manager; the Sheriff and District Attorney of San Bernardino County and the Mayor and Chief of Police of the City of San Bernardino.
The Inland Center is located in a nonresidential area and is bounded by a drainage channel, a six-lane interstate highway and a commercial street. In industry parlance, it is a 'regional fashion center' which connotes a shopping center with only 'top line stores' which services a large geographical area. It contains a large parking lot, a totally covered, air-conditioned shopping complex which consists of three major stores--Sears, The Broadway and The May Company--and seventy-two 'tenant stores' all of which have an unobstructed front on the covered 'mall' or 'common aisleway.' The complex is surrounded by a six to eight foot wide sidewalk. Adjacent to the sidewalk are heavily traveled driveways and the parking lot.
The covered mall area is open during business hours to customers or those others doing business with the Center by means of entry through unlocked doors. Homart encourages customers to visit the mall in anticipation of increased sales for the tenant shops. It furnishes piped-in music, receptacles and benches on the thirty-two foot wide common aisleways. It forbids the tenant stores from engaging in sales or other activities on the mall aisleways and spends, along with the tenant stores, considerable sums of money to make the mall an attractive and convenient place for customers. Customers are also encouraged to come to the Center by means of promotions and generally unmanned displays conducted in the mall area pursuant to contractual arrangements and closely regulated by Homart as to time, date, location and format.
Under Homart's regulations all activity apart from such regulated, mutually beneficial promotions and displays, whether by tenants or strangers, is forbidden on the common aisleways of the mall area. This policy is an integral part of Homart's objective to create a pleasant and attractive area for customers to shop without congestion or interference. This policy is well established and enforced without discrimination. Pursuant to this policy, although the center receives many calls from all varieties of religious, charitable, fraternal and political groups who seek permission to use the Center property, all such forms of solicitation, distribution of material and like activity are and have been prohibited on the Center property.
Twenty-five thousand persons per day on the average shop and visit Inland Center. Persons visiting the Center customarily arrive by motor vehicle, drive into the parking lot which has passage ways governed by motor vehicle traffic regulations. At each entrance to the parking lot are 'no trespass' signs indicating that it is private property and admission is subject to revocation.
On October 28 and 29, 1969, representatives of Inland Center were asked by representatives of People's Lobby, Inc., for permission to gather signatures for their initiative petition and disseminate information in connection therewith. Although a request for use of the mall area was made, Homart was also asked if the uncovered six to eight foot sidewalk between the structural and the parking lot areas could be used. Both requests were denied. Appellants advised Homart that their activities would be orderly and that they would not obstruct anything although they would like to use a card table to gather signatures, but Hommart still rejected their request.
On October 30, 1969, at approximately 7:45 p. m., Duxler and another individual representing People's Lobby, together with a newspaper reporter and a photographer whom Duxler had requested to be present, entered the Center, went into the mall area and set up a standard size card table. There they proceeded to solicit signatures on the initiative petition, disseminate information with regard thereto, pass out bumper stickers, collect donations in a contribution container and affix a sign describing their purpose to the Center directory.
Shortly thereafter, Mr. Barrett, the security officer, observed a crowd of people congregating in the mall and proceeded to investigate the reason therefor. After ascertaining that Duxler and the other individuals were acting without permission, he requested that they cease their activity and leave the Center. They took down their card table, discontinued their activities and left the mall area, only to resume their activities on the exterior sidewalk. Again, Barrett requested they leave and this time they did.
The entire transaction lasted about half an hour during which time numerous persons signed the petitions. Other than the existence of the table and the activities of Duxler and the other individuals in securing the signatures on the initiative petitions, there was no 'disturbance' or 'disruption' in the usual sense of the use of those words. Everyone behaved admirably.
While no threat of prosecution was made nor was anyone arrested, the testimony is clear that if plaintiffs had not complied with Barrett's request, he would have reported the matter to Lambert, the Center manager, who, in turn, would have requested police assistance. The Chief of Police, in turn, testified that had his office been called upon, he would have removed persons from the Center at the request of Homart if they were in violation of the City Trespass Ordinance or a State Penal Code section defining trespass.
There were alternative means and locations whereby plaintiffs could have accomplished their desired objectives without utilizing the private property of the Center. The solicitation could have been undertaken on public sidewalks, in public parks, at public buildings, and at entertainment and sporting events. Other communication with the public admittedly could have been had through newspaper media, radio, television, telephone, door-to-door contact, bumper stickers and mailings. However, appellants contend, and we feel that the record substantiates the contention, that these methods are not as desirable or as effective as the use of a shopping center or mall where the public congregates in large numbers on foot.
On November 5, 1969, appellants filed a complaint for injunctive relief (which contained a prayer for declaratory relief) alleging that respondents' refusal to permit them to use the Inland Center premises to solicit signatures on their initiative petitions and disseminate information in connection therewith was in violation of their constitutional rights. A request for a temporary restraining order was denied, and, after a hearing on November 14, 1969, the request for a preliminary injunction was also denied. The parties then stipulated that the order of the trial court denying the preliminary injunction should also apply to the request for a permanent injunction and a judgment was entered accordingly on December 5, 1969. Notice of appeal was filed by appellants in this court on December 8, 1969.
A threshold question of mootness presents itself.
The parties urge and we agree that the case is not moot.
January 26, 1970, was the deadline for the securing of signatures for plaintiffs' initiative petition. The findings and judgment of the trial court were entered on December 5, 1969. Thus, when the case was before that court, the issues were clearly not moot. However, the time has now passed for the securing of additional signatures and at first blush it would appear that the case is now moot.
Generally, an action which originally was based upon a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. The appeal should be dismissed. The reason for this rule is that a reversal in such a case would be without practical effect. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 63 Cal.Rptr. 21, 432 P.2d 717; Consolidated Vultee Aircraft Corp. v. United Auto etc. Workers, 27 Cal.2d 859, 167 P.2d 725; Nomm v. Nomm, 164 Cal.App.2d 663, 330 P.2d 839.)
However, the parties have filed with this court a joint declaration in which they both submit that the case should not be considered moot. In support of this contention, plaintiffs allege that they are presently seriously contemplating other similar campaigns and regard access to Homart's property and that of other similarly situated shopping centers to be essential thereto. In turn, Homart alleges that the Inland Center has frequently been approached by various people seeking to engage in solicitation and related activities, and contends that it can reasonably be anticipated that not only the plaintiffs but numerous other groups will seek to engage in similar activities in the future. Thus, the parties urge that a recurrence of plaintiffs' October 30, 1969 conduct may reasonably be anticipated in the future. Plaintiffs reasonably believe that if they do so, Homart will impose on them what they consider to be an unconstitutional impediment on their exercise of First Amendment free speech rights. On the other hand, Homart reasonably believes that if the plaintiffs press forward with their planned program, it would be placed in the dilemma of either ejecting them as it did in the instant case and thus become subject to similar litigation or doing nothing and thus being deprived of what it believes to be its Fifth Amendment property rights.
Under certain conditions Appellate Courts may entertain a case which subsequent events appear to have made moot. Some of the criteria for this exception to the rule of mootness are: (1) There is a reasonable likelihood of the same problem recurring between the same two parties giving rise to future litigation on the same subject. (2) There remain material questions for the court's determination. (3) Underlying questions persist. (4) The relief prayed for may encompass future and contingent legal rights. (5) The parties agree that a finding of mootness would necessitate future litigation, i. e., that a finding of mootness would relegate the parties to the very situation which precipitated the present litigation, a development creating a continuing controversy calling for decision. (6) That it is likely that the continuing controversy would never be decided on appeal because of the limited time involved in the questioned activity. (7) That the controversy involves a question of great public interest.
(Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1; Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 21 L.Ed.2d 325; Eye Dog Foundation v. State Board of Guide Dogs for the Blind, supra, 67 Cal.2d 536, 63 Cal.Rptr. 21, 432 P.2d 717; County of Madera v. Gendron, 59 Cal.2d 798, 31 Cal.Rptr. 302, 382 P.2d 342; Di Giorgio Fruit Co. v. Department of Employment, 56 Cal.2d 54, 13 Cal.Rptr. 663, 362 P.2d 487; Rattray v. Scudder, 28 Cal.2d 214, 169 P.2d 371; Jordan v. County of Los Angeles, 267 Cal.App.2d 794, 73 Cal.Rptr. 516; Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 300 P.2d 163.)
While all of the above criteria need not exist for a finding against mootness, it is obvious that in this case each of the standards listed do apply. Therefore, we hold that this case is not moot.
Turning to the merits of the case, appellants contend that under applicable case law, they can conduct on respondents' mall and on its sidewalks, driveways and parking lot whatever First Amendment protected activities they could on the public streets of a city--in this case solicit signatures for their petition, disseminate information and collect donations.
Respondents reply that appellants can have the unconsented use of respondents' property only if the manner and purposes sought are consistent with the use to which the property is actually put and then only when there are no alternative effective means of communication readily available.
For an answer to these contentions, it is necessary to trace in some detail the legal history of the use of privately owned shopping centers for First Amendment purposes.
One is first met with the somewhat vague but widely used expression that public streets, highways and parks have been 'traditionally' or 'from time immemorial' the place for the exercise of First Amendment rights of free speech. However, as Chief Justice Traynor pointed out in In re Hoffman, 67 Cal.2d 845 at 849, 64 Cal.Rptr. 97, 434 P.2d 353, the 'time immemorial' from which streets and parks had been required to be held open for First Amendment activities really dates from 1939, with the case of Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. In that case the Supreme Court determined that First Amendment activities on public streets, sidewalks, and parks could be regulated only to the extent necessary to prevent interference with the municipality's interest in protecting the public health, safety or order or in assuring the efficient and orderly use of streets and parks for their primary purpose. The difficulty of fashioning a workable set of rules for even this concept of the exercise of First Amendment rights on public property hasproduced a number of decisions which have divided the court. (See Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637; Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155.)
Then in 1946 the United States Supreme Court extended this principle to a company-owned town in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265. In Marsh, all the property interests in the town were held by a single company. However, the town did not function differently from any other town. It consisted of residential buildings, streets, sidewalks, a system of sewers, a sewage disposal plant and a business block in which business places were situated. All were owned by the company. A deputy sheriff, paid by the company, acted as the town's policeman. Merchants and service establishments rented the stores and business places in the business block and the United States Government maintained therein a post office from which mail was delivered to the people of the town. 'In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.' (Marsh v. Alabama, supra, 326 U.S. 501, 503, 66 S.Ct. 276, 277, 90 L.Ed. 265.)
Appellant, a Jehovah's Witness, was distributing religious literature on a sidewalk in the business block. She was told to leave, refused, was charged with and convicted of trespass. The Supreme Court reversed the conviction holding that in such a company-owned town appellant's First Amendment rights were the same as though she had been pursuing those rights on a publicly owned sidewalk. The reasoning in Marsh is clear. Since all of the property was owned by the company, any use of the company-owned streets and sidewalks was the equivalent of engaging in such activity on publicly owned streets and sidewalks in an ordinary town. In other words, it was held to be proper to carry out any First Amendment protected activities on the privately owned streets of a company-owned town that could be carried out on the publicly owned streets of an ordinary town. While the language of the case does not use the exact expression 'the lack of alternative effective means of communication,' the facts of the case and the holding make it clear that this concept loomed large in the opinion. In a company-owned town there are no alternative effective means of man-to-man communication--by word of mouth, handbills, placards, etc. Were the company-owned town to deny all First Amendment rights on its streets and public places, the inhabitants would have nothing but radio, television (not very potent in 1946), mail and newspapers (assuming the landowner allowed newspaper sales and delivery) by which communication on matters of public interest could be brought to the attention of the inhabitants.
Then in 1964 the Supreme Court of this State decided the landmark case of Schwartz-Torrance Investment Corp. v. Bakery and Confectionery Workers' Union, 61 Cal.2d 766, 40 Cal.Rptr. 233, 394 P.2d 921. In this case, the court held that the owners of a shopping center could not enjoin as a trespass a union's peaceful picketing of premises leased by an employer from the owners of the shopping center. The court concluded that the union's interest in picketing outweighed the property owner's interest in 'vindicating a theoretical invasion of its right to exclusive control and possession of private property.' (Schwartz-Torrance Investment Corp. v. Bakery and Confectionery Workers' Union, supra, 61 Cal.2d 766, 772, 40 Cal.Rptr. 233, 236, 394 P.2d 921, 924.)
While Schwartz-Torrence cited Marsh for the general principle of 'the diluted nature of a property right in premises opened to the public' (Schwartz-Torrance, supra, p. 771, 40 Cal.Rptr. 236, 394 P.2d p. 924), the case was decided primarily upon labor relations law and on a public policy favoring concerted activities of employees for the purpose of collective bargaining. (Labor Code, § 923; Messner v. Journeymen Barbers etc. International Union, 53 Cal.2d 873, 4 Cal.Rptr. 179, 351 P.2d 347; Shafer v. Registered Pharmacists' Union, 16 Cal.2d 379, 106 P.2d 403.) The preferential status of picketing under our laws weighed heavily with the court in Schwartz-Torrance. In other words, Schwartz-Torrance was and is a picketing case and the language of that case should not be extended beyond the factual situation presented therein.
The case in which appellants place their primary trust is Amalgamated Food Employees' Union, Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, decided in 1968. Here the principles of Marsh were extended from a company-owned town to an ordinary shopping center in a picketing case. The court held that for the purposes of that case an ordinary shopping center was the functional equivalent of a community business block and for First Amendment purposes as reflected by picketing and handbilling in a labor dispute involving places in the shopping center, it was to be treated in the same manner.
However, Logan Valley specifically failed to resolve the question of whether it was necessary that First Amendment protected activities to be carried out on a shopping center have a causal connection or be directly related to the purpose to which the shopping center property was being put. The court stated (391 U.S. at p. 319, 88 S.Ct. 1609), 'All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. State of Alabama, 326 U.S. at 508, 66 S.Ct. at 279, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.' [Emphasis added.] The court follows that statement with footnote 9 on the same page, which reads: 'The picketing carried on by petitioners was directed specifically at patrons of the Weis Market located within the shopping center and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.' [Emphasis added.]
In 1969, the Supreme Court of this State in In re Lane, 71 A.C. 911, 79 Cal.Rptr. 729, 457 P.2d 561, a picketing case, carried the Logan Valley principle a step further and extended First Amendment rights insofar as picketing and a labor dispute were concerned, to a privately owned widewalk which led to an individual store but which sidewalk was held open to access by the public.
The most recent case in this field before the Supreme Court of the United States is Taggart v. Weinacker's Inc., 397 U.S. 223, 90 S.Ct. 876, 25 L.Ed.2d 240, (March 9, 1970), which casts little light on the subject of this case. This also was a picketing case involving a shopping center but the decision did not discuss the general problem, merely concluding that in the light of an obscure record, the physical circumstances of the narrow sidewalk involved, the finding of the state court on obstruction of customers, coupled with the fact that only a bare remnant of the original controversy remained, that the writ should be dismissed as improvidently granted.
It is to be noted that each of the above cases, excluding Marsh, was a picketing case. In each case there was an activity being carried on which was consistent with and directly related to the primary use to which the property was being put. In each of these cases there was an effort to communicate by a particular group to a particular group at a place which represented the object of protest and in each case the area selected presented the most effective point of persuasion. In Marsh, of course, full First Amendment rights were granted on the streets and sidewalks of a town which was wholly owned by a company as there was absolutely no place in that town in which First Amendment activities of any nature could be carried on without the consent of the landowner.
To bring the appellants in the present case within the protection and under the umbrella of the above cases, we must either find under the Marsh theory that a shopping center has all of the attributes of a company-owned town, or under Logan Valley, Schwartz-Torrance, Lane and Taggart that the activities of the appellants were consistent with and directly related to the purpose and use to which the property was actually being put.
Turning first to the Marsh concept:
Shopping centers are an historical and logical extension of a process which began when supermarkets and department stores developed. In the supermarket concept, grocery stores, butcher shops, bakeries, green grocers, tobacconists, liquor stores and delicatessens all combined under one roof for the convenience of customers and eventually dispensed practically every commodity attractive to the shopper, including sundries and dry goods. At the same time there was developing the department store concept in which small shops which sold ladies' dresses, men's haberdashery, cosmeties, jewelry, luggage, perfume, hardware, appliances, yardage goods, toys, sporting equipment, and furniture again combined for the convenience of the shopper under one roof. Finally, because we had become an automobile oriented culture, all of these were brought together in the modern shopping center--some vast in size and concept such as the Inland Center, but mostly small and centered around a supermarket.
But large or small, a shopping center is not a town. Inland Center covers many acres. It caters to thousands of people each day, but large as it is, it is not a town. While the general language of Logan Valley clothes it for picketing purposes with the garb of 'the functional equivalents of the streets and sidewalks of a normal municipal business district,' this is a legal fiction. One does not spend one's whole life in a shopping center as one may in a town, company or otherwise. The customers and employees of a shopping center leave it each day to return to 'town' where they may properly be exposed to First Amendment communications on public streets, sidewalks and parks. It would be unreasonable to enlarge the company-town concept of Marsh to a shopping center for all First Amendment rights regardless of the size of the shopping center. The rationale of Marsh discussed above simply does not fit a shopping center.
Thus, the real question presented is, are the activities of the appellants consistent with and directly related to the primary purpose and use to which respondents' premises are being put under the Logan Valley, Schwartz-Torrance, Lane and Toggart concepts? We hold that the owner of a privately owned shopping center is not required to permit the unconsented use of his property for unrelated First Amendment activities by others for the following reasons:
I.
THE DESIRED USE IS NOT DIRECTLY RELATED IN ITS PURPOSE TO THE USE TO WHICH THE SHOPPING CENTER IS ACTUALLY BEING PUT.
Appellants would have us interpret the phrase 'consonant with the use to which the property is actually put' to mean 'consistent with the facilities available' or 'consistent with the physical structure of the shopping center.' This test is overbroad. There may be 'facilities available' in a market, a department store, a hospital, a hotel, a private home or the waiting room of a business office. We interpret the phrase 'consonant with the use to which the property is actually put' to mean some use directly connected with that particular property. Thus, in picketing cases the use by others of the property involved is allowed for First Amendment purposes because that is the place which is the object of protest. This is a purpose directly related to the business of the shopping center. In addition, in picketing cases, there is the preferred status of picketing under Federal and California law as pointed out in Schwartz-Torrance. The reason Logan Valley and Schwartz-Torrance allowed picketing on the shopping center was that to do otherwise would be to immunize the shopping center by the use of its large parking lot from any on-the-spot criticism of the economic practices of the businesses therein. This would deprive the union of the opportunity to conduct its picketing at the most effective point of persuasion--the place of the business involved. The concept of criticism is explicit in Schwartz-Torrance and Logan Valley. There, the target of criticism was within the shopping center. In the instant case, there is no attempt to criticize Homart or any store therein.
Among other contentions, appellants contend that First Amendment rights may be exercised at every location wherein they have been 'traditionally' exercised. Union picketing and other protest communications have been 'traditionally' exercised at the establishment whose policies are being protested. No such situation exists herein for these appellants merely wish to engage in general, unrelated First Amendment activities on respondents' property. The concept of 'tradition' is dangerously vague. Most retail, commercial establishments are open to the public and in a literal sense places of 'traditional' market activity. Yet, even appellants do not contend that they can carry on their unconsented activities in a grocery store or a meat market. While the soliciting of names on an anti-pollution initiative is a highly commendable activity, it can by no stretch of the imagination be construed as being directly related to the business of the shopping center. We cannot find that the solicitation of signatures for this initiative measure is generally consonant with or directly related in its purpose to the use to which the Inland Center is actually put. 1
II.
THE AVAILABILITY OF OTHER EFFECTIVE ALTERNATIVE CHANNELS OF COMMUNICATION.
The record is clear that in the opinion of the appellants the shopping center is the most desirable place in which to solicit signatures for an initiative petition. We feel that the record supports this view. It is an attractive, pleasant and convenient place in which to communicate their message. 2 However, alternative methods of solicitation and communication are available as pointed out in the statement of facts above. It was the very absence of such channels in Logan Valley which caused the court in that case to find that the state substantially hindered the communication of ideas which petitioner in that case sought to express. (Amalgamated Food Employees' Union, Local 590 v. Logan Valley Plaza, Inc., supra, 391 U.S. 308, 323, 88 S.Ct. 1601, 20 L.Ed.2d 603.) In Schwartz-Torrance, alternatives available were such that they would involve the danger of traffic tie-ups, confusion as to the object of the picketing and the requirements of larger signs and more pickets. This brings us back to the fact that every case decided to date involving shopping centers has been a picketing case. For other First Amendment activities such as those proposed by appellants in this case, the parties can conduct their programs, carry on their commuications, disseminate their information and make their solicitations on publicly owned streets, sidewalks, parks, etc.--even though these may not be as desirable as respondents' property. As a matter of rather obvious public policy, First Amendment rights of communication of ideas by word of mouth should be exercised on public property. For an exception to this rule, a strong showing of need must be made. No such showing has been made in this case. To the contrary there are available other effective (although admittedly not as desirable) alternative channels of communication.
III.
THE POTENTIAL FOR OBSTRUCTION AND INTERFERENCE OCCASIONED BY THE EXERCISE OF UNRELATED FIRST AMENDMENT RIGHTS IN A SHOPPING CENTER WARRANTS A DENIAL OF THOSE RIGHTS THEREON.
Even when dealing with public property, the exercise of First Amendment rights may be regulated where such exercise will unduly interfere with the normal use of the public property by other members of the public with an equal right of access to it. (Taggart v. Weinackers, Inc., supra, 90 S.Ct. 876, 877; Amalgamated Food Employees' Union, Local 590 v. Logan Valley Plaza, Inc., supra, 391 U.S. 308, 320-321, 88 S.Ct. 1601, 20 L.Ed.2d 603.)
Appellants point out that in In re Hoffman, supra, 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353, and Wolin v. Port of New York Authority, 2 Cir., 392 F.2d 83, the courts expressly rejected the two tests previously discussed, i. e., that the proposed use must be related to the business of the property involved and that there not be available other effective channels of communication. However, Hoffman and Wolin are clearly distinguishable on their facts. In each case there was leaflet distribution concerning the United States involvement in Viet Nam. It is true that in neither was the activity related to the business of the property owner and in both there were available other effective channels of communication. However, the physical facts of the property involved create a clear distinction between these cases and the instant case. In Hoffman, the activities were being conducted in the Los Angeles Union Railroad Station which was then a great railway terminal serving three major railroads. In Wolin, the site of the activities was an immense bus terminal covering a full city block and serving over 200,000 people per day. In these cases the court permitted the unrelated First Amendment activities, pointing out that noise and confusion were characteristic of the normal operation of a railroad station or bus terminal, that the very nature of the operations were such that the proposed activities could in no way interfere with the normal use of the property or with the normal orderly carrying on of the business conducted therein and that the property involved was an appropriate place for expression of views. The court pointed out in Wolin, particularly, that the character and function of the place chosen for the exercise of First Amendment rights is an important factor affecting the limits of toler able disruption and that while the Supreme Court had protected loud and boisterous conduct on a street used as a state house driveway during the day (Edwards v. South Carolina, supra, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697) that similar activity would not receive the same treatment if it were conducted in other places where 'order and tranquillity of a sort entirely unknown to the public streets are essential to their normal operation.' (Wolin, supra, fn. 8, 392 F.2d p. 90.)
Here, we feel that it is obvious that the normal activities carried on at the Inland Center can hardly be compared to those carried on in the New York Bus Terminal or the Los Angeles Union Station.
The normal orderly carrying on of business in a shopping center demands an entirely different standard of order and tranquility than the disorder, confusion and tumult to be found in a bus terminal or railroad station. The level or degree of tolerable interference between the two types of activities is so great that one set of rules cannot be made to apply to both situations.
The possibilities of the results of unrelated First Amendment activities for religious, charitable, political, social and economic purposes being carried on in the malls or on the walks, aisles, driveways and parking areas of shopping centers (or for that matter of supermarkets or department stores) stagger the imagination. If appellants can do what they propose to do in this case, others obviously have the same right. One card table is a minimal obstruction, thirty or forty would destroy business and unduly interfere with the normal use of the property by other members of the public.
Appellants suggest that they be allowed to conduct their unrelated First Amendment activities subject to 'reasonable regulations.' When one contemplates the tens of thousands of shopping centers, large and small, and the large number of individuals or groups who may wish to use these premises for the exercise of unrelated First Amendment rights thereon, the problem of creating 'reasonable regulations' for each case assumes epic proportions. The shopping center (or the supermarket) is 'where the action is' as the citizens leave the decaying, traffic congested centers of our towns and cities and flock to the modern shopping centers with their ease of parking and other conveniences. However, merely by reason of this historic accident, we cannot turn shopping centers into miniature Pershing Squares, Union Squares or Hyde Parks. History, some of it of recent origin, has shown the irresponsibility of certain groups in exercising cherished First Amendment rights of freedom of communication and expression. Municipalities are peculiarly equipped to promulgate 'reasonable requlations.' But a holding that anyone may exercise his unrelated First Amendment rights on a shopping center subject only to 'reasonable regulations' presents to the owners of the shopping centers policing problems of staggering proportions.
In any case such as this there is a clash between two conflicting constitutional rights--the right of the property owner to run his business without interference and the right of others to engage in First Amendment activities. The court must accommodate these constitutional rights and look to each case to determine wherein the line has to be drawn. As the court pointed out in Logan Valley, a balance must be obtained which seeks to neither 'substantially hinder the communication of the ideas' nor 'significantly interfer[e] * * * with the use to which the [private] property [is] being put by both respondents and the general public.' (Logan Valley, supra, 391 U.S. p. 323, 88 S.Ct. p. 1611.) Due to the brevity of the incident and the exemplary behavior of all connected with it, obstruction and interference in the instant case were minimal; nevertheless, they were 'appreciable,' (In re Hoffman, supra, fn. 6, 67 Cal.2d p. 852, 64 Cal.Rptr. 97, 434 P.2d 353), and the potential for obstruction and interference is clear.
We feel that the tests set forth above strike this balance. 3
Applying the above standards to the facts in the instant case, the decision of the lower court was proper and the judgment of that court denying the injunction is affirmed.
KERRIGAN, Acting P. J., and TAMURA, J., concur. --------------- 1 This limitation on the Marsh principle was recognized by Judge Henry J. Friendly in Powe v. Miles, 2 Cir., 407 F.2d 73 at p. 80, where Judge Friendly refers to Logan Valley's exteension of the principles of Marsh 'in the context of union picketing of one of the enterprises located there.' 2 One is reminded of the contention made in Adderly v. Florida, supra, that the protesters there had a right to stay on jail property because the area was 'particularly appropriate.' To this contention, the court responded, 'Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on, Cox v. State of Louisiana, supra, [379 U.S.] at 554-555 and 563-564, 85 S.Ct. at 464 and 480. We reject it again.' 3 We are aware of a three-sentence per curiam opinion of the Supreme Court of the State of Minnesota which reversed a trespass conviction of individuals who had entered a shopping center for the purpose of distributing a pamphlet or tract on behalf of the candidacy of certain persons in a political campaign. The court said, 'On May 20, 1968, the case of Amalgamated Food Employees' Union Local 590 v. Logan Valley Plaza, Inc. [citation omitted] was decided by the Supreme Court of the United States. The decision is controlling over the facts involved in the case now before us. On the basis thereof the convictions must be reversed.' (State v. Miller, 280 Minn. 566, 159 N.W.2d 895.) All we can say is that for the reasons stated in this opinion we must respectfully disagree with the simplistic approach taken by that court.