In California Malls, Free Speech Rights Reign Supreme: An Analysis of Snatchko vs. Westfield LLC
In a ruling published in August, the California 3rd Appellate District overturned a lower court decision and declared that certain common area rules imposed by the owner of a large regional shopping mall in Roseville, California are “unconstitutional on their face” because the rules prohibited peaceful, consensual, spontaneous conversations between strangers about topics not related to the mall, its tenants or their related activities. Matthew Snatchko v. Westfield LLC et al. (Cal.App.3rd, August 11, 2010). It should be noted that the opinion was authored by Tani Cantil-Sakauye, the current nominee for chief justice of the California Supreme Court.
At the heart of the case are the actions of Matthew Snatchko, a 27-year-old youth pastor. Snatchko often visited the Galleria at Roseville in search of opportunities to share his Christian faith. While in the common area one evening, he approached three young women who agreed to talk with him. A store employee reported Snatchko’s activities to mall security, who, after observing some “nervous behavior” by the women, asked Snatchko to stop talking to the women or leave the mall. Snatchko refused; the officer called for backup and a senior security officer responded and ordered Snatchko out. When Snatchko continued to refuse, the security officers placed him under citizen’s arrest, handcuffed him and then turned him over to Roseville police. Snatchko was booked and released, and when he appeared in court for arraignment, all charges were dropped. The Placer County District Attorney later stipulated that Snatchko was factually innocent, and a Superior Court judge issued an order stating the same.
Snatchko sued Westfield, the owner of the Galleria, the security firm employed at the Galleria, and the arresting officer. He claimed monetary damages in an unspecified amount for false imprisonment, assault, battery, intentional infliction of emotional distress, negligence, malicious prosecution, and a general violation of his rights under the Unruh Civil Rights Act.
The specific common area rule at issue prohibits a person from approaching other people in the common area with whom he or she was not previously acquainted for the purpose of communicating about a topic unrelated to the business interests of the mall or its tenants or a non-commercial activity sponsored by the mall or a tenant without first applying for, and receiving, a permit from Westfield.
The Court began its analysis of this rule with the landmark 1979 California Supreme Court ruling in Pruneyard Shopping Center v. Robins. In Pruneyard, the Court held that Article 1, Section 2 of the California state constitution protects the rights of free speech, reasonably-exercised, in a privately-owned shopping mall. With Pruneyard as the starting point, the Court applied the type of free speech analysis generally used for governmentally-imposed speech restrictions to Westfield’s common area rule.
The first step in the analysis was to determine whether the permit requirement for common area speech is triggered by the specific words, ideas and content of the speech, or if the permit requirement applies equally to all types of speech regardless of the specific words, ideas and content being expressed. After several pages of analysis, the Court concluded that the Westfield common area rule is triggered by the specific content of the speech. The Court reasoned that conversations between strangers—even consensual, spontaneous and non-disruptive conversations—regarding topics that are unrelated to the business of the Galleria and its tenants are limited by the permit requirement. In contrast, the Westfield rule allows anyone to discuss matters related to the Galleria, its tenants, or noncommercial activities sponsored by the mall without a permit or other interference.
Since the Westfield common area rule limits specific types of speech between certain types of speakers (e.g., words, ideas and content unrelated to the Galleria) but freely permits other types of speech with no restrictions (e.g., words, ideas and content related to the Galleria), the Court determined that the rule is “content specific”. Because the rule is content specific, the Court stated that the rule must pass a higher threshold in order to be deemed constitutional. Westfield needed to prove that its content-specific limitation on common area speech was both necessary to serve a compelling interest, and narrowly tailored to achieve such interest.
Westfield argued that its limitation on strangers discussing topics not related to the business of the Galleria and/or its tenants in the common area served a compelling interest in reducing mall congestion and promoting public safety. The Court rejected this argument because the rule would permit an unlimited number of friends and acquaintances from congregating and talking in the common area. Westfield also claimed that the common area rule promoted its compelling economic interest in providing a convenient, comfortable shopping atmosphere to its patrons. The Court resoundingly rejected this claim as well, stating that providing a stress-free shopping experience is not a compelling interest when compared to the importance of free speech rights. The Court then went on to find that Westfield’s common area rule is not narrowly tailored to the least restrictive means of promoting its alleged compelling interest. The Court reasoned that the Westfield rule is overbroad and prohibits more speech than is necessary.
Although the Court could have ended its analysis at this point and overturned the Westfield rule, the Court continued in its analysis. The Court said that even if it determined that the Westfield rule applied to all speech equally regardless of the specific content, the rule would still not survive constitutional review. To prove this point, the Court applied the lower standard of review appropriate for so-called “content-neutral” speech restrictions: does the content-neutral restriction burden more speech than necessary to further the interests protected by the speech restriction? Again, the Court determined that the Westfield common area rule was overbroad and limited far more types of speech than necessary. The Court specifically described a number of types of consensual, spontaneous conversations between strangers in the common area that are prohibited by the Westfield rule, including discussions regarding sports, the weather or other types of “chit chat”. The Court labeled these types of conversations as “classic free speech” and found that such conversations should not be unduly restricted.
Accordingly, based on the Snatchko ruling, it seems advisable to carefully review common area rules so as to ensure that the rules permit spontaneous free speech regarding any and all topics between strangers who mutually agree to converse and who cause no disturbance or otherwise interfere with the operation or enjoyment of the shopping center.
From available media accounts, Westfield is deciding whether to appeal the case.