Docket No. Crim. 12829.
August 20, 1969.
PROCEEDING in habeas corpus to secure release from custody. Writ granted; petitioner ordered discharged from custody.
Neyhart, Grodin Beeson and Duane B. Beeson for Petitioner.
Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci, Derald E. Granberg and Timothy G. Laddish, Deputy Attorneys General, for Respondent.
In October 1967 petitioner was convicted in the Contra Costa County Municipal Court of two misdemeanors: violation of Concord Municipal Code sections 4147 (remaining on another's property after being notified by the owner to remove therefrom) and 4128 (distributing handbills on premises of another without his consent). The Appellate Department of the Contra Costa Superior Court affirmed, and the Court of Appeal, First Appellate District, Division Two, denied habeas corpus without opinion. Petitioner then sought relief from this court, and we issued an order to show cause. Execution of judgment on conviction has been stayed pending our decision herein. As will appear, we have concluded that petitioner's activities were protected as an exercise of free speech.
Section 4147: "Every person who remains upon any private property or business premises within the City of Concord, after being notified by the owner or lessee or other person in charge thereof to remove therefrom, is guilty of a misdemeanor."
Section 4128: "No person shall throw or distribute upon any public street or place, and no person shall throw or distribute upon any premises owned, occupied or controlled by another, any handbill, poster, flyer, dodger, or advertisement of any merchandise, profession, business or trade without having first obtained the consent of such other person so to do, provided, that this Section shall not apply to the distribution of newspapers or of the United States Mail."
Petitioner is an officer of a labor union which was involved in a labor dispute with one Lesher, publisher of certain newspapers. On June 17, 1967, petitioner appeared at the Calico Market, a large "super-market-type" grocery store located on Monument Boulevard in Concord, for the purpose of distributing handbills urging customers not to patronize Calico Market because it advertised in newspapers published by Lesher, who was engaged in labor union disputes.
The Calico Market is an individual grocery store, owned and personally operated by one Stewart. It is not part of a chain and is not located in a shopping center. Stewart testified that he holds under lease the 24,000 square feet occupied by the store building "and all of the [customer] parking area in front of the store for 150 feet extending to Monument Boulevard [a public street]," along which a public sidewalk runs. A sidewalk some 10 feet wide runs along and adjacent to the front of the store; two doorways off of it serve as the customer entrances to the store building. The sidewalk is part of the privately owned property and is utilized only as a way between the parking lot and the store. Only the Calico Market is served by the parking area, which is accessible by two driveways from Monument Boulevard, and also by a direct route from the neighboring service station.
A witness for petitioner testified that he had "paced" the distance from the building to Monument Boulevard and found it to be some 280 feet. Because Monument curves in front of the market property, the distance apparently varies.
On the morning in question petitioner without the consent of owner Stewart stationed himself on the sidewalk just outside one of the doorway entrances to the store and commenced to distribute handbills. Petitioner did not block ingress or egress of customers, and did not speak to any customers except to thank them for taking a handbill. Stewart came out of the store and requested petitioner to leave the premises, pointed out that he could pass out the handbills on the public sidewalk adjacent to Monument Boulevard, and warned him that if he persisted on the store property Stewart would call the police. Petitioner stated he intended to pass out handbills all day long, Stewart then stepped between him and approaching customers, petitioner stepped around Stewart in order to reach the customers and in so doing pushed Stewart back in front of the customers, who were unable to enter the store, and Stewart "grabbed" for the handbills, which fell to the ground. Stewart's son who clerked in the store, thereupon emerged to assist his father and started to gather up the handbills. At this point one Lambert, a companion of petitioner, "came running down the parking lot" and yelled "That's all right, we've got the picture." Next, the police arrived, explained to petitioner that his handbilling and remaining on the premises without Stewart's consent constituted misdemeanors, and when petitioner continued to do both, arrested him.
A week before this disturbance two persons passing out the same or similar handbills had been asked to leave the parking lot; one did so but the other continued his handbilling until the police arrived. Lambert, petitioner's associate, testified that because of this prior friction he accompanied petitioner to the market property to witness the disturbance he expected to result from further distribution at Calico, and to take photographs. As an outgrowth of the disturbance which did occur battery charges were lodged against market owner Stewart. Similarly, petitioner was charged with and convicted of violation of the two Concord ordinances. (See ante, fns. 1, 2.)
Certain of such photographs were introduced into evidence by petitioner at his trial, but are among exhibits he has not brought before this court.
 It is established that peaceful picketing or handbilling "carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment." ( Amalgamated Food Emp. Union Local 590 v. Logan Valley Plaza (1968) 391 U.S. 308 [20 L.Ed.2d 603, 88 S.Ct. 1601, 1605] and cases there cited.) Accordingly, petitioner had a right unquestionably under the free speech guaranties to distribute his handbills on the public sidewalk between Monument Boulevard and the parking lot of Calico Market, and the only constitutional question remaining is whether he had a similarly protected right to distribute them on the privately owned sidewalk areas opened by Calico for use by its customers as the sole means of ingress and egress to and from its store.
Marsh v. Alabama (1946) 326 U.S. 501 [90 L.Ed. 265, 66 S.Ct. 276], involved distribution of religious literature on sidewalks of the "business block" of a company-owned town, which the opinion relates was used by the residents "as their regular shopping center." The court states in Logan Valley, supra (pp. 1607-1608 of 88 S.Ct. [391 U.S. at p. 316, 20 L.Ed.2d at p. 611]), that in Marsh, for First Amendment purposes, it had treated such sidewalks as if they had been publicly held. Logan Valley concerned the validity of a state court decision enjoining union picketing on private property in front of one store in a privately owned shopping center designed to ultimately serve many businesses, but at the time serving only two stores. In reversing, the court noted that the typical suburban shopping center is "a cluster of individual retail units on a single large privately owned tract" (p. 1611 of 88 S.Ct. [391 U.S. at p. 324, 20 L.Ed.2d at p. 615]), and that in the Logan Valley shopping center "the roadways provided for vehicular movement within the mall and the sidewalks leading from building to building are the functional equivalents of the streets and sidewalks of a normal municipal business district." (Pp. 1608-1609 [391 U.S. at p. 319, 20 L.Ed.2d at p. 612].) The opinion explicitly points out the grounds and scope of the decision (p. 1609 [391 U.S. at pp. 319-320, 20 L.Ed.2d at p. 612]): "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,' [citing Marsh], the State may not delegate [to the private owners] 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.
"We do not hold that respondents, and at their behest the State, are without power to make reasonable regulations governing the exercise of First Amendment rights on their property. Certainly their rights to make such regulations are at the very least co-extensive with the powers possessed by States and municipalities, and recognized in many opinions of this Court, to control the use of public property. Thus where property is not ordinarily open to the public, this Court has held that access to it for the purpose of exercising First Amendment rights may be denied altogether." (Italics added.)
At the end of the opinion in Logan Valley the court emphasized the adverse effect on First Amendment rights which would result if businesses were free to isolate themselves by the device of surrounding their stores by parking lots: "Business enterprises located in downtown areas would be subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores. Neither precedent nor policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment.
"Therefore, as to the sufficiency of respondents' ownership of the Logan Valley Mall premises as the sole support of the injunction issued against petitioners, we simply repeat what was said in Marsh v. State of Alabama, 326 U.S. at 506 [90 L.Ed. at 268, 66 S.Ct. at 278], `Ownership does not always mean absolute dominion. 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.' Logan Valley Mall is the functional equivalent of a `business block' and for First Amendment purposes must be treated in substantially the same manner." (88 S.Ct. at p. 1612 [391 U.S. at p. 325, 20 L.Ed.2d at p. 616].)
In the case at hand we have the identical situation the court warned against. If we were to hold the particular sidewalk area to be "off limits" for the exercise of First Amendment rights in effect we would be saying that by erecting a "cordon sanitaire" around its store, Calico has succeeded in immunizing itself from on-the-spot public criticism. Logan Valley noted (p. 1610 of 88 S.Ct. [391 U.S. at pp. 321-322, 20 L.Ed.2d at p. 614]): "Petitioners' picketing was directed solely at one establishment within the shopping center. The berms surrounding the center are from 350 to 500 feet away from the Weis store. All entry onto the mall premises by customers of Weis, so far as appears, is by vehicle from the roads along which the berms run. Thus the placards bearing the message which petitioners seek to communicate to patrons of Weis must be read by those to whom they are directed either at a distance so great as to render them virtually indecipherable — where the Weis customers are already within the mall — or while the prospective reader is moving by car from the roads onto the mall parking areas via the entrance ways cut through the berms. In addition, the pickets are placed in some danger by being forced to walk along heavily traveled roads along which traffic moves constantly at rates of speed varying from moderate to high. Likewise, the task of distributing handbills to persons in moving automobiles is vastly greater (and more hazardous) than it would be were petitioners permitted to pass them out within the mall to pedestrians."
Here, the public sidewalk which Calico suggests is available for First Amendment purposes is located some 150-280 feet from the store. The posted speed limit is 40 miles per hour on Monument Boulevard which adjoins that public sidewalk. The customary manner by which customers reach the market is by automobile and use of the parking lot. Thus, the difficulties and hazards to those attempting to exercise First Amendment privileges are as present here as they were in Logan Valley.
In Schwartz-Torrance Inv. Corp. v. Bakery Confectionery Workers' Union (1964) 61 Cal.2d 766 [ 40 Cal.Rptr. 233, 394 P.2d 921], this court also declared the right to peacefully picket on the sidewalks of a privately owned shopping center whose parking lot and sidewalks served the several leased stores. And in In re Hoffman (1967) 67 Cal.2d 845 [ 64 Cal.Rptr. 97, 434 P.2d 353], this court declared that subject to reasonable regulations handbilling in Union Station in Los Angeles was protected as a free speech activity. The opinion points out (p. 847) that Union Station is owned by three railroad companies; is a spacious area open to the community as a center for rail transportation; also houses a restaurant, snack bar, cocktail lounge and magazine stand; is open to free entry and use of waiting room facilities by passengers and their friends and relatives; that entry is also free to those who seek food or drink or magazines and newspapers; that (p. 851) so far as privacy rights were concerned a railway station is like a public street or park, and that noise and commotion are characteristic of the normal operation of such a station.
The only significant distinction between the cases cited and the instant case is the more limited purposes for which the particular sidewalk is designed to serve; here, the customers of one store, and in the other cases customers of two or more stores, or as a route of access to other places or purposes. Certainly, this sidewalk is not private in the sense of not being open to the public. The public is openly invited to use it in gaining access to the store and in leaving the premises. Thus, in our view it is a public area in which members of the public may exercise First Amendment rights.
Certainly the paramount and preferred place given to the First Amendment freedom of speech right in our democratic system (see Weaver v. Jordan (1966) 64 Cal.2d 235, 241 [ 49 Cal.Rptr. 537, 411 P.2d 289]) should be accorded precedence over the mere "naked title" (see Logan Valley, supra, p. 1611 of 88 S.Ct.) of market owner Stewart's interest in the premises.
Although in Schwartz-Torrance Inv. Corp. v. Bakery Confectionery Workers' Union, supra, 61 Cal.2d 766, 772-774, this court itself noted certain distinctions between the shopping center and similar cases involving "quasi-public" places on the one hand, and the single retail store or business establishment on the other, we see no conflict between the United States Supreme Court decision in Logan Valley, supra, our own decision in Schwartz-Torrance, supra, and our decision in the case at hand.  We believe that the basic principles established by those decisions are equally applicable to this case. In essence they hold that when a business establishment invites the public generally to patronize its store and in doing so to traverse a sidewalk opened for access by the public the fact of private ownership of the sidewalk does not operate to strip the members of the public of their rights to exercise First Amendment privileges on the sidewalk at or near the place of entry to the establishment.  In utilizing the sidewalk for such purposes those seeking to exercise such rights may not do so in a manner to obstruct or unreasonably interfere with free ingress or egress to or from the premises.
In the light of this conclusion we need not consider petitioner's contention that jurisdiction over his handbilling activities is preempted under the National Labor Relations Act. (See Schwartz-Torrance Inv. Corp. v. Bakery Confectionery Workers' Union, supra, p. 775 of 61 Cal.2d; In re Zerbe (1964) 60 Cal.2d 666, 670 [ 36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840].)
The petition for a writ is granted and petitioner is ordered discharged from custody.
Assigned by the Chairman of the Judicial Council.