Free-speech advocates: Don’t shop until mall policy dropped

Tuesday, July 20, 1999

Free-speech advocates say that if a San Diego mall’s rules are enforced, shoppers won’t be allowed to talk.

They claim that Fashion Valley Mall’s restrictions on expressive activity would ban every kind of speech on mall property for protesters and shoppers alike.

But the privately owned mall says its regulation of expressive activity applies only to public speech that interferes with business.

The conflict began last November, when about 40 anti-fur demonstrators distributed leaflets and carried signs outside the mall. But when some moved onto mall property, 11 were arrested on trespassing charges. In December, the mall sued several animal-rights organizations and about 1,000 “John Does” — anonymous members of the groups — accusing them of trespass.

But so far, Fashion Valley Mall’s lawsuit has backfired. On June 11, a Superior Court judge rejected one of the mall’s rules — a ban on behavior that discourages customers from making purchases — saying it was overbroad and vague.

Encouraged by Judge John S. Meyer’s ruling, the defendants are urging the court to go further when the two sides meet again in court on August 20. They want the court to reject another mall policy, one that would require all mall visitors to complete a 35-page application before engaging in “expressive activity.” The defendants, led by the Los Angeles-based animal-rights group Last Chance for Animals, say this requirement is unconstitutional because it can only be selectively enforced.

The mall defines “expressive activity” as “any conduct, speech, sign, placard, pamphlet, or other written or verbal communication of any kind about a person, group, or organization’s opinions, belief, or position about politics, religion, labor rights … anyone’s products or services, or about any other subject of any kind.”

Last Chance for Animals’ attorney, Bing I. Bush, Jr. of San Diego, said this definition is all-inclusive, and therefore overly broad. “[The mall's] fundamental definition of expressive activity is so broad that it encompasses everything,” he said. “If anyone ever says anything, if you talk, it’s expressive activity” that is subject to the permit application.

Because requiring an application for every mall visitor who wanted to speak would be unrealistic, Bush said, the mall would have to selectively enforce its policy. He says this would give mall officials arbitrary power in deciding which visitors to have arrested.

“What was of great concern to me is that the mall’s policies essentially allow it to decide what speech is appropriate and what is inappropriate in a public environment,” he said. “Simply stated, [mall officials] are in a position to prohibit speech that they don’t like.”

But McLin Lines, attorney for Fashion Valley Mall, said that private conversations would be excluded from the restrictions.

“Our security people do not go through trying to eavesdrop,” Lines said. But, he said, “once a private conversation becomes public because of the way it’s communicated, there’s a regulation allowed. Usually the mall will ask the people to quiet down because it’s disruptive.”

In his ruling, Meyer left open the possibility that the mall could narrow its policy to legitimately regulate speech that threatened business.

“The act of discouraging customers from spending money at the stores is in direct contradiction with the basic function of the shopping center,” he wrote.

Both Lines and Bush say that malls have rights to limit speech with “reasonable time, place and manner” restrictions on expressive activity. They differ over how those regulations should be applied.

“There are certain types of speech the court says can be prohibited,” Lines said, citing obscenity and libel. “In our particular case, speech that would interfere with commerce can be prohibited.”

“Once you draw the broad parameters” of what is protected by free speech, Lines said, “you can draw content-based exceptions.”

Eric Mindel of Last Chance for Animals, however, thinks the mall’s ability to restrict speech should be limited to speech that is likely to cause violence.

“Commerce should be protected,” Mindel said, “but at the same time, [malls are] expected to have reasonable policies that don’t violate free speech.”

Bush agrees, saying that an anti-solicitation policy might be acceptable. But, he said, “there is a fundamental difference in actually preventing people from buying, and telling them that they shouldn’t buy fur. That’s pure speech.”

Lines says that Fashion Valley Mall’s private ownership gives it more power to regulate speech. “It’s a private entity designed to function as a center of commerce. Therefore, there is a greater right to participate in the regulation of expressive activity.”

But his opponents point to the 1980 U.S. Supreme Court ruling, Pruneyard Shopping Center v. Robins. In that decision, the court agreed with California’s high court that California could interpret its state constitution to guarantee free-speech rights, even on private property.

Bush also cites a 1969 U.S. Supreme Court decision, Shuttlesworth v. Birmingham, to support his claims that selective enforcement of vague laws is unconstitutional.

U.S. Supreme Court Justice Potter Stewart wrote in that decision that “a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade, according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals’ of the community.”

Citing what he regards as precedent set by the Shuttlesworth decision, Bush says, “until the mall has a constitutionally valid application process, we’re not subject to [its] guidelines.”