This morning in San Diego, a judge will listen to arguments as to why canvassers should or shouldn’t be allowed to seek signatures on petitions and donations in support of gay marriage.
Target is suing Canvass for a Cause because, it says in this court document, the group is interfering with its customers.
The filing comes from a security guard (which Target calls “executive team lead for assets protection.”).
Canvass for a Cause solicitors typically start by asking our customers if they support gay marriage. If the answer is yes, they ask our customers to sign a petition and for a credit-card donation. If the answer is no, they challenge the customers on their beliefs. Whenever our customers say no, whether it is about making a donation, signing a petition, or about support for gay marriage, the solicitors become angry and aggressive, continuing to challenge our customers on their morals. I have seen them tell our customers not to vote if they are unhappy with the customers’ views.
All Target stores have a no-soliciting policy and they’re private property anyway. As WCCO’s Jason DeRusha noted on Twitter a few minutes ago, they also ban the Salvation Army at Christmastime.
So what’s the big deal?
Apparently, it’s this. California recognizes free speech as trumping private property rights. (h/t: @lawnonymous)
Despite Hudgens’ clear statement of federal law, the California Supreme Court held in Robins v. Pruneyard Shopping Center that the free-speech and petition provisions of the California Constitution grant mall visitors a constitutional right to free speech that outweighs the private-property interests of mall owners. The California Supreme Court took the position that “all private property is held subject to the power of government to regulate its use for the public welfare.” In the unanimous 1980 decision Pruneyard Shopping Center v. Robins, the U.S. Supreme Court affirmed the state court’s decision, noting that its own reasoning in Lloyd “does not ex proprio vigore (“of its own force”) limit the authority of the State to exercise its police power” (power to regulate the use of private property) “or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” A state may, therefore, in the exercise of its power to regulate, adopt reasonable restrictions on private property, including granting greater freedom to individuals to use such property, so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. (In this instance it would be a “taking” of a property owner’s right to exclude others.)
But Target says the courts have held that private stores inside private developers are not bound by that interpretation.
These cases make clear that Target stores are not themselves withìn the reach of the Pruneyard decision and that we do not need to allow people to use our property for expressive activity, Even in shopping malls that are within the reach of the Pruneyard decision, the right under Pruneyard is to use the common areas of the mall, not the area directly outside the Target store entrance. Individuals wishing to use the common areas within shopping malls should address the matter with the shopping mall owner or operator, not with Target.