California appeals court says no to signature-gatherers at privately owned store

Wednesday, December 27, 2000

A California-based signature-gathering company does not have a
free-expression right to solicit signatures outside a warehouse-style
supermarket, a state appeals court has ruled.

Progressive Campaigns, a company that gathers signatures for
initiative petitions, contended that under the California constitution citizens
could assemble outside Waremart and obtain signatures.

However, the owners of Waremart contended that they could prohibit
loitering and solicitation in order to protect their customers from obtrusive
behavior. They argued that their interests as property owners should prevail.

In 1998, Waremart filed two lawsuits in state court, seeking to enjoin
Progressive from standing on their privately owned sidewalk to solicit
signatures for initiative petitions.

Progressive had argued that it had the right to engage in free
expression at the store under the California Supreme Court’s 1979 decision in
Robins v. Pruneyard Shopping Center.
In that decision, the California high court ruled that individuals do have
free-speech rights at a privately owned shopping mall. In 1980, the U.S.
Supreme Court affirmed the California high court’s decision.

The California high court in Pruneyard reasoned that “to protect free
speech and petitioning is a goal that surely matches the protecting of health
and safety, the environment, aesthetics, property values and other societal
goals that have been held to justify reasonable restrictions on private
property rights.”

After a trial judge ruled in favor of Waremart, Progressive appealed.
On Dec. 18, the California Court of Appeals for the Third Appellate
District affirmed the trial court’s decision and ruled in favor of Waremart.

The appeals court noted that Waremart is much different from the
shopping mall at issue in the Pruneyard decision. “Unlike many shopping
centers, Waremart does not provide amenities to the public, such as places to
congregate, recreational activities, or a cinema,” the court wrote in
Waremart, Inc. v. Discovery Petition Management

“There is no tangible evidence that Waremart has assumed a role in
Chico as the functional equivalent of a public forum in a manner comparable to
the shopping center in Pruneyard,” the court wrote.

The appeals court relied in part on a July 1999 California appeals
court ruling in Trader Joe’s Company v. Progressive
that ruled that Progressive could not engage in
signature-gathering at a privately owned, free-standing store.

The appeals court concluded: “Under the circumstances, the societal
interest in using Waremart as a forum for exercising free speech and
petitioning activities does not outweigh Waremart’s interest in exercising
exclusive control over the use of its private property.”

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