Question: I saw on the local news that a “pickup artist” in Sacramento got arrested for trespassing at Arden Fair Mall. When the reporter interviewed him, the pickup artist said he shouldn’t have been arrested because he had a “First Amendment” right to be there. Is that true? Can I just go to a mall and say whatever I want? (He also said the Founding Fathers believed in the “freedom to flirt,” but I think that was supposed to be a joke.)
— Alexis J., Davis, Calif
Answer: Believe it or not, the pickup artist is right — at least about the first part. He’s got free speech rights in malls, though those rights are grounded in Article I, Section 2 of California’s constitution, which states:
“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
The First Amendment to the federal constitution states that “Congress [and states] shall make no law … abridging the freedom of speech.”
Note the difference: In California, the state constitution affirmatively grants the right to “freely speak,” while the federal constitution merely restrains the government from “abridging” the freedom of speech. California grants an affirmative right; the federal Constitution restrains the government from abridging a right.
This might seem like a minor difference, but the California Supreme Court thought otherwise. In Pruneyard v. Robins, the court held that the California Constitution was indeed broader than the federal constitution. Because our suburban society only rarely congregates in town squares these days, the “mall” has become the modern-day town square. If a speaker wants to get in touch with people, he has to go to the mall, which has become the only town square-like public place where people congregate just to hang out and talk. In a public park or town square, your free speech rights are at their xenith; you cannot be kicked out of a park just because you said something offensive. As I discussed in an earlier column, such content-based restrictions on speech are almost always unconstitutional.
The ability to speak to people in person is especially important in California because of the referendum, recall and initiative processes established in our state constitution. You know those dozens of propositions on the ballot every year? Most of them are on the ballot only because hundreds of thousands of people physically signed petitions in support. Without petition signatures, Gray Davis couldn’t have been recalled, and we would’ve missed out on Governor Arnold Schwarzenegger’s six years of mismanagement.
You might have realized the flaw in the court’s reasoning: the internet. Yes, people in the 21st century “congregate” online. If you want to start a revolution in 2013, you don’t go to the mall, you go on Facebook or Twitter. And Pruneyard is indeed an old case, dating from the late 1970s. However, although it’s been somewhat narrowed over the years, it’s been upheld as recently as late 2012, despite the ability to reach out to people online. In that 2012 case, Ralphs Grocery v. United Food, the California Supreme Court held that the common areas of shopping centers, including food courts, are still public forums. A mall’s sidewalks and corridors are not public, but the food courts and atriums are.
Back to the pickup artist you saw on TV. I saw that same clip on the local news and got in touch with the guy, whose name is Bryan Barton. Barton told me that when he speaks to people at malls, he does it in the food court. If this is true, his speech falls within the California Constitution’s protections, and the mall was out of line for kicking him out. In fact, since the video made it look like the mall security handcuffed Barton and physically detained him, Barton might have a good case for a lawsuit against the mall based on battery, false imprisonment and assault.
Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at firstname.lastname@example.org or tweeted to @governorwatts.