Golden Gateway Center

GOLDEN GATEWAY CENTER, Plaintiff, Cross-defendant and Appellant, v. GOLDEN GATEWAY TENANTS ASSOCIATION, Defendant, Cross-complainant and Respondent.
No. S081900.

SUPREME COURT OF CALIFORNIA

26 Cal. 4th 1013; 29 P.3d 797; 111 Cal. Rptr. 2d 336; 2001 Cal. LEXIS 5598

August 30, 2001, Decided

PRIOR HISTORY: Superior Court of the City and County of San Francisco. Super. Ct. No. 981081. John E. Dearman, Judge. Court of Appeal of California, First Appellate District, Division Three. A082319.

DISPOSITION: Affirmed the judgment of the Court of Appeal.

CASE SUMMARY

PROCEDURAL POSTURE: The trial court held that appellee residential tenant association had a contractual right to distribute newsletters in a residential apartment complex owned and managed by appellant partnership. The Court of Appeal of California, First Appellate District, Division Three, held that the association had no such right under the federal or California constitutions and reversed. The association sought further review.

OVERVIEW: For 11 years association members distributed newsletters in the complex where they lived without objection from management. When the association continued to distribute newsletters after the building's standards had been revised to forbid leafleting, the partnership filed a complaint to enjoin the distribution, and the association filed a cross complaint for injunctive and declaratory relief under the federal and state free speech clauses. The supreme court seized the opportunity to clarify the Pruneyard decision which held that the California constitution protected speech and petitioning in privately owned shopping centers. The court held that based on historical antecedents, the text of the free speech clause, and case law, California's Constitution only protected against state action. Although Pruneyard did not mention state action, it relied heavily on the functional equivalence of the shopping center to a traditional public forum. However, the apartment complex was not functionally equivalent to a traditional public forum. Thus, management's decision to forbid leafleting was not state action which impinged on the association's free speech rights.

OUTCOME: The court affirmed the decision of the court of appeals.

CORE TERMS: free speech, tenant, state action, distribute, framers, newsletter, door, First Amendment, ban, lead opinion, unsolicited, privacy, freely, pamphlet, free speech right, privately owned, residential, hallway, leafleting, leaflet, private parties, landlord, sentence, general public, apartment, shopping center, privately owned shopping center, apartment complex, italics, state constitutional right

LexisNexis(R) Headnotes Hide Headnotes

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Political Speech
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN1

A union has no federal constitutional right to picket in a shopping center because the actions of the private owner of the shopping center do not constitute state action. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN2

A tenants association has no right to distribute a newsletter door-to-door in a privately owned apartment complex under the United States Constitution. More Like This Headnote

Constitutional Law > State Constitutional Operation & Amendment

^HN3

The lack of federal constitutional protection does not limit the authority of the state to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the federal constitution. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN4

See Cal. Const. art. I, § 2(a).

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN5

Unlike the United States Constitution, which couches the right to free speech as a limit on congressional power, U.S. Const. amend. I, the California Constitution gives every person an affirmative right to free speech. Cal. Const., art. I, § 2(a). Accordingly, the California Supreme Court has held that the California free speech clause is more definitive and inclusive than the First Amendment. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN6

See U.S. Const. amend. I.

Constitutional Law > State Constitutional Operation & Amendment

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN7

Cal. Const. art. I, §§ 2 and 3 protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned. More Like This Headnote

Governments > Courts > Judicial Precedents

^HN8

Whether or not the California Supreme Court agrees with a previous California Supreme Court's recognition of a state constitutional right to free speech in a privately owned shopping center, if it is addressing the issue for the first time, it is obliged to follow it under principles of stare decisis. Even in constitutional cases, the doctrine of stare decisis carries such persuasive force that the courts have always required a departure from precedent to be supported by some special justification. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN9

Before state courts can fully resolve substantive free speech issues, a proper constitutional analysis requires that they first address the threshold issue of whether the suits are barred by a state action requirement. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN10

The first sentence of Cal. Const. art. I, § 2(a) contains no explicit state action limitation. The California Constitution gives every person the right to freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Cal. Const. art. I, § 2(a) The breadth of this language combined with the framers' arguable understanding of its ramifications suggest an intent to protect the right to free speech against private intrusions. The express prohibition against a law restraining or abridging free speech found in the second sentence of the clause arguably bolsters such an interpretation. Cal. Const. art. I, § 2(a). More Like This Headnote

Constitutional Law > Civil Rights Enforcement > Civil Rights Act of 1871 > State Action
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN11

The absence of an explicit state action limitation in Cal. Const. art. I, § 2(a) is not dispositive. More Like This Headnote

Constitutional Law > Civil Rights Enforcement > Civil Rights Act of 1871 > State Action

^HN12

The omission of state action language from a state constitutional provision does not necessarily evince an intent to apply constitutional guarantees to private parties. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN13

The language of Cal. Const. art. I, § 2(a) supports a state action limitation. The second sentence of the clause, which prohibits any law from restraining or abridging liberty of speech, indicates an intent to protect against only state actions. More Like This Headnote

Governments > Legislation > Interpretation

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN14

Where the text of the California Constitution is not conclusive, the court must look to the history behind California's free speech clause for guidance. This history indicates that the framers intended to impose a state action requirement. More Like This Headnote

Governments > Courts > Judicial Precedents

^HN15

A decision is not authority for everything said in the opinion but only for the points actually involved and actually decided. More Like This Headnote

Governments > Legislation > Interpretation

^HN16

Where a constitutional provision announces a broad principle of government, the court necessarily looks beyond the text and considers the context and history of that provision. More Like This Headnote

Constitutional Law > State Constitutional Operation & Amendment

^HN17

State constitutions serve as limitations on the otherwise plenary power of state governments. Under this principle, the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other. More Like This Headnote

Governments > State & Territorial Governments > Relations With Governments

^HN18

By exempting private action from the reach of the Constitution's prohibitions, the state action limitation stops the Constitution short of preempting individual liberty--of denying to individuals the freedom to make certain choices. Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution's demands. More Like This Headnote

Governments > State & Territorial Governments > Relations With Governments

^HN19

A state action limitation safeguards the separation of powers embodied in every American constitution by recognizing the limited ability of courts to accomplish goals which are essentially legislative and political. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN20

Neither the text of California's free speech clause nor California case law reveals an intent to depart from the bedrock principles of constitutional jurisprudence. At the same time, the history behind the free speech clause supports the inclusion of a state action limitation and contains nothing even suggesting a contrary possibility. Accordingly, Cal. Const. art. I, § 2(a) only protects against state action. More Like This Headnote

Constitutional Law > Civil Rights Enforcement > Civil Rights Act of 1871 > State Action
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN21

State action for purposes of California's free speech clause is not the same as state action for purposes of the federal First Amendment. In particular, California's free speech clause, unlike its federal counterpart, runs against certain privately owned shopping centers. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN22

The applicability of California's free speech clause depends in part on the public character of the property. More Like This Headnote

Constitutional Law > Civil Rights Enforcement > Civil Rights Act of 1871 > State Action
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN23

The actions of a private property owner constitute state action for purposes of California's free speech clause only if the property is freely and openly accessible to the public. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN24

Privately owned medical centers and their parking lots are not functionally equivalent to a traditional public forum for purposes of California's free speech clause because, among other things, they are not freely open to the public. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN25

An apartment complex does not resemble a traditional public forum because it is a place where the public is generally excluded. More Like This Headnote

Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN26

Where an apartment complex is privately owned, and the owner restricts the public's access to the complex, in fact carefully limiting access to residential tenants and their invitees, the complex is not the functional equivalent of a traditional public forum. Accordingly, the owner's actions do not constitute state action for purposes of California's free speech clause, Cal. Const. art. I, § 2(a). More Like This Headnote

Constitutional Law > Civil Rights Enforcement > Civil Rights Act of 1871 > State Action
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

^HN27

Judicial enforcement of injunctive relief does not, by itself, constitute state action for purposes of California's free speech clause, Cal. Const. art. I, § 2(a), where the private property owner merely seeks judicial enforcement of a neutral lease provision. More Like This Headnote

Show Headnotes / Syllabus

COUNSEL:

Bartko, Zankel, Tarrant & Miller, Glenn P. Zwang and Howard L. Pearlman for Plaintiff, Cross-defendant and Appellant.

James S. Burling and Harold E. Johnson for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant.

Edward J. Sack; Law Offices of Jo Anne M. Bernhard and Jo Anne M. Bernhard for California Business Properties Association and International Council of Shopping Centers as Amici Curiae on behalf of Plaintiff, Cross-defendant and Appellant.

Pahl & Gosselin, Stephen D. Pahl and Karen M. Kubala for California Apartment Association as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant.

De Vries & Gold, Law Offices of Robert De Vries, Carolyn Gold and Robert De Vries for Defendant, Cross-complainant and Respondent.

Jonathan P. Hiatt; Altshuler, Berzon, Nussbaum, Rubin & Demain and Scott A. Kronland for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae on behalf of Defendant, Cross-complainant and Respondent.

Alan L. Schlosser; Morris D. Lipson; Chapman, Popik & White and Susan M. Popik for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Defendant, Cross-complainant and Respondent.

Michael Somers, Gerald J. Van Gemert and James Arthur Judge for Association of Alternative Postal Systems, Inc., Los Angeles Newspaper Group, Advertising Consultants, Inc., CIPS Marketing Group, Inc., Turtle Ridge Media Group, Inc., and National Directory Company, Inc., as Amici Curiae on behalf of Defendant, Cross-complainant and Respondent.

JUDGES: Opinion by Brown, J., with Baxter and Chin, JJ., concurring. Concurring opinion by George, C. J. (see p. 1035). Dissenting opinion by Werdegar, J., with Kennard, J., and Klein, J., * concurring (see p. 1043).

* Presiding Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

OPINIONBY: BROWN

OPINION: [*1016] [**798] [***338]

BROWN, J.

In a groundbreaking decision over 20 years ago, we departed from the First Amendment jurisprudence of the United [**799] States Supreme Court and extended the reach of the free speech clause of the California Constitution to privately owned shopping centers. ( Robins v. Pruneyard Shopping Center (1979) 23 Cal. 3d 899, 910 [153 Cal. Rptr. 854, 592 P.2d 341] (Robins), affd. sub nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 [100 S. Ct. 2035, 64 L. Ed. 2d 741].) Since then, courts and commentators have struggled to construe Robins and determine the scope of protection provided by California's free speech clause. Today, we clarify Robins and consider whether a tenants association has the right to distribute its newsletter in a privately owned apartment complex under article I, section 2, subdivision (a) of the California Constitution. n1 We conclude it does not.

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n1 All further undesignated article references are to the California Constitution unless otherwise indicated.

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BACKGROUND

Golden Gateway Center (Golden Gateway), a limited partnership, owns a retail and residential apartment complex (Complex) in downtown San Francisco. The Complex consists of four high-rise buildings and a group of townhouses and contains 1,254 residential units. Although the Complex contains a number of retail establishments at the ground level, these retail establishments are separate from the residential [***339] units and do not have access to the residential portions of the Complex.

In the residential portion of the Complex, Golden Gateway emphasizes privacy and security. Consistent with this emphasis, Golden Gateway provides doormen during the daytime and 24-hour roving security patrols, and limits access to residential tenants and their invitees. Golden Gateway also [*1017] promulgates building standards incorporated by reference in every residential lease agreement. At all relevant times, these standards banned all solicitation in the building. As part of their lease agreements, all residential tenants agree to abide by these standards, and Golden Gateway retains the right to "make amendments to the Building Standards and adopt further Building Standards as in Owner's opinion are reasonable or desirable for the proper and orderly care, use and operation of the Apartment and Building and its grounds . . . ."

In 1982, a group of residential tenants in the Complex formed a tenants association called the Golden Gateway Tenants Association (Tenants Association). Since its inception, the Tenants Association has periodically distributed a newsletter on or under the apartment doors of all residential tenants. For approximately 11 years, building management did not object to the distribution of these newsletters.

In 1993, however, the manager of the Complex asked the Tenants Association to stop distributing newsletters on or under apartment doors. In support, the manager cited the prohibition against "soliciting within the building" found in the building standards in effect at that time. The Tenants Association responded with several letters from attorneys asserting its constitutional right to free speech and threatening legal action. Hoping to avoid litigation, the manager told the Tenants Association that "Golden Gateway Center management will not oppose the distribution of newsletters under apartment doorways by members of the Golden Gateway Tenants' Association provided it is done in a reasonable manner." Based on this representation, the Tenants Association resumed its "practice of distributing GGTA newsletters to all tenants by sliding them under doors . . . ." Neither building management nor the Tenants Association, however, discussed or defined what "a reasonable manner" meant.

Golden Gateway hired a new building manager in 1995. In early 1996, the Tenants Association sharply increased its leafletting activity and distributed at least eight separate newsletters and notices from February to May. Because of this increased activity, the new manager asked the Tenants Association to scale back its leafletting and to limit its distributions to newsletters. Citing the First Amendment of the United States Constitution, the Tenants Association refused [**800] and continued to distribute its newsletter to all residential tenants.

Soon after, Golden Gateway revised its building standards. The revised standards stated in relevant part: "Any solicitation within the building is [*1018] absolutely forbidden. This includes, for example, solicitation for profit, political purpose or any other reason, whether in writing or in person. . . . [P] Leafleting within the building is absolutely forbidden. This includes, for example, posting leaflets or notices anywhere in the buildings other than on the bulletin boards located in the laundry rooms, sliding leaflets or other papers underneath tenants' doors, placing leaflets or other papers on or about tenants' doors, or leaving multiple copies of leaflets or other papers in any common areas. The only exception to this rule is where a tenant specifically requests that papers be delivered to him or her either under or in front [***340] of his or her door. . . ." Golden Gateway mailed a copy of the new standards to each residential tenant and explained that each tenant must comply with these standards pursuant to his or her lease agreement.

Despite the new building standards, the Tenants Association continued to distribute its newsletter door-to-door. Golden Gateway then filed a complaint, seeking to enjoin the Tenants Association from distributing leaflets "in and around their apartment doors." The Tenants Association responded by filing a cross-complaint for injunctive and declaratory relief. The cross-complaint contended, among other things, that the Tenants Association had a constitutional right to distribute its newsletters.

The trial court initially issued a preliminary injunction enjoining the Tenants Association from leafletting. After trial, however, the court dissolved the injunction and held that the Tenants Association had "a binding contractual right to distribute its newsletter throughout" the Complex "by placing its newsletters under the doors of all tenants, on the door knobs of tenants, and on bulletin boards that are provided." Upon resolving the case on contractual grounds, the court declined to reach the constitutional free speech issues.

The Court of Appeal reversed. After concluding that Golden Gateway did not enter into "a binding lease agreement modifying its Building Standards" with the Tenants Association based on the first manager's representation, the court held that the Tenants Association had no right to leaflet in the Complex under the United States or California Constitution.

We granted review to determine: (1) whether the tenants association of a large apartment complex has the right, under the California Constitution, to distribute its newsletter and other leaflets concerning residence in the complex to tenants in the building; and, if so, (2) whether a ban on the distribution of these materials to tenants constitutes an unreasonable time, place and manner restriction on free speech. [*1019]

DISCUSSION

I

^CA(1a)

Click here to go to CA Official headnotes

(1a) In Hudgens v. NLRB (1976) 424 U.S. 507, 519-520 [96 S. Ct. 1029, 1036-1037, 47 L. Ed. 2d 196] (Hudgens), the United States Supreme Court held that ^HN1

a union had no federal constitutional right to picket in a shopping center because the actions of the private owner of the shopping center did not constitute state action. Hudgens, supra, at pages 518-519 [ 96 S. Ct. at pages 1035-1036], expressly reversed Food Employees v. Logan Plaza (1968) 391 U.S. 308 [88 S. Ct. 1601, 20 L. Ed. 2d 603] (Logan Plaza), by clarifying and extending the court's ruling in Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 570 [92 S. Ct. 2219, 2229-2230, 33 L. Ed. 2d 131] (Lloyd) (holding that political leafletters had no federal free speech rights in a privately owned shopping mall). As acknowledged by both parties, Hudgens and Lloyd establish that the ^HN2

Tenants Association has no right to distribute its newsletter door-to-door under the United States Constitution. ^HN3

The lack of federal constitutional protection does not, however, "limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." [**801] ( Pruneyard Shopping Center v. Robins, supra, 447 U.S. at p. 81 [100 S. Ct. at pp. 2040].) Thus, the Tenants Association may still prevail if the free speech clause of the California Constitution protects its leafetting activities. (Art. I, § 2, subd. (a).) As explained below, we conclude it does not.

[***341] ^HN4

Article I, section 2, subdivision (a) 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." ^HN5

Unlike the United States Constitution, which couches the right to free speech as a limit on congressional power (see U.S. Const., 1st Amend.), n2 the California Constitution gives "[e]very person" an affirmative right to free speech (Cal. Const., art. I, § 2, subd. (a)). Accordingly, we have held that our free speech clause is "more definitive and inclusive than the First Amendment . . . ." ( Wilson v. Superior Court (1975) 13 Cal. 3d 652, 658 [119 Cal. Rptr. 468, 532 P.2d 116].)

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n2 ^HN6

The First Amendment of the United States Constitution states in relevant part: "Congress shall make no law . . . abridging the freedom of speech . . . ."

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Consistent with this more expansive interpretation of California's free speech clause, we have declined to follow the First Amendment jurisprudence of the United States Supreme Court in certain circumstances. Perhaps [*1020] our most noteworthy departure from this jurisprudence occurred in Robins. In Robins, the majority reversed Diamond v. Bland (1974) 11 Cal. 3d 331 [113 Cal. Rptr. 468, 521 P.2d 460] (Diamond II), and held that ^HN7

"sections 2 and 3 of article I of the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." (Robins, supra, 23 Cal. 3d at p. 910.) In doing so, the majority rejected the approach of Hudgens and Lloyd and reasserted the independent force of the California Constitution. n3 (See Robins, at pp. 908-909.)

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n3 In holding that high school students had a state constitutional right to solicit signatures in a privately owned shopping center, Robins weighed the students' right to free speech against the property rights of the owner of the shopping center. (Robins, supra, 23 Cal. 3d at pp. 910-911.) Robins did not, however, consider the free speech rights of the owner under the California Constitution. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal. 4th 468, 513 [101 Cal. Rptr. 2d 470, 12 P.3d 720] (Gerawan) [holding that California's free speech clause grants "a right to refrain from speaking at all as well as a right to speak freely"].) We express no opinion here as to the role of these rights in ascertaining the scope of free speech rights guaranteed by article I, section 2, subdivision (a).

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Despite the clarity of its ultimate disposition, Robins was less than clear "as to the scope of the free speech rights it was recognizing." (Brownstein & Hankins, Pruning Pruneyard: Limiting Free Speech Rights Under State Constitutions on the Property of Private Medical Clinics Providing Abortion Services (1991) 24 U.C. Davis L.Rev. 1073, 1090 (Pruning Pruneyard).) For example, Robins did not address the threshold issue of whether California's free speech clause protects against only state action or also against private conduct. (See Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal. App. 3d 816, 838 [182 Cal. Rptr. 813] (Laguna Publishing) [finding Robins "intriguing" because it never discussed or impliedly dealt with "the phenomenon of state action"].) Robins also provided little guidance on how to apply it outside the large shopping center context. (Pruning Pruneyard, supra, 24 U.C. Davis L.Rev. at p. 1092 [Robins did not provide "useful guidance on how this new constitutional journey was to proceed"].) Not surprisingly, numerous legal commentators have pointed out and questioned these curious omissions in Robins. n4 Moreover, most of [***342] our sister courts interpreting [**802] state constitutional provisions similar in wording to California's [*1021] free speech provision have declined to follow Robins. n5 Indeed, some [***343] of these courts have been less than kind in their criticism of Robins. (See, e.g., SHAD [*1022] Alliance, supra, 488 N.E.2d at p. 1214, fn. 5; Jacobs, supra, 407 N.W.2d at p. 841.)

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n4 (See, e.g., Friedelbaum, Private Property, Public Property: Shopping Centers and Expressive Freedom in the States (1999) 62 Alb. L.Rev. 1229, 1239 (Private Property, Public Property) ["It is difficult to understand how a threshold issue [state action] of such importance could have been overlooked except for the fervency of both federal and state courts to attain other objectives" (fn. omitted)]; Kelso, California's Constitutional Right to Privacy (1992) 19 Pepperdine L.Rev. 327, 413 (California's Right to Privacy) ["the court in Pruneyard does not resolve whether the free speech clause applies to all private conduct which burdens speech or only to private conduct imbued with public elements sufficient to trigger the protections of the Declaration of Rights"]; Pruning Pruneyard, supra, 24 U.C. Davis L.Rev. at pp. 1090, 1092 [expressing surprise at Robins's failure to address the state action issue and noting other analytical problems]; Devlin, Constructing an Alternative to "State Action" as a Limit on State Constitutional Rights Guarantees: A Survey, Critique and Proposal (1990) 21 Rutgers L.J. 819, 832 (Constructing an Alternative) ["the [Robins] court was less explicit about its reasons for applying the state constitution . . . [and] did not clarify whether it rejected a state action requirement or simply broadened the federal definition of 'state action' to embrace the peculiar facts of the case" (fn. omitted)]; Simon, Independent but Inadequate: State Constitutions and Protection of Freedom of Expression (1985) 33 U. Kan. L.Rev. 305, 325-336 (State Constitutions and Protection of Freedom of Expression) ["The Pruneyard court did not explain why this [free speech] burden applied to private parties . . . [and] did not attempt to delineate the scope of California's affirmative right of freedom of expression"]; Comment, State Constitutional Rights of Free Speech on Private Property: The Liberal Loophole (1982/1983) 18 Gonz. L.Rev. 81, 94 (State Constitutional Rights of Free Speech) ["The California Supreme Court in Robins, however, never expressly rejected this [state action] prerequisite and in fact simply avoided the issue"]; Comment, Transforming the Privately Owned Shopping Center into a Public Forum: Pruneyard Shopping Center v. Robins (1981) 15 U. Rich. L.Rev. 699, 720 [Robins is "confusingly broad"]; Note, Robins v. Pruneyard Shopping Center: Free Speech Access to Shopping Centers Under the California Constitution (1980) 68 Cal. L.Rev. 641, 645 (Free Speech Access to Shopping Centers) [suggesting that the court was not prepared to address the state action issue in Robins]; but see, e.g., Ragosta, Free Speech Access to Shopping Malls Under State Constitutions: Analysis and Rejection (1986) 37 Syracuse L.Rev. 1, 21 (Free Speech Access to Shopping Malls) [observing that "only California has completely and clearly rejected a state action limitation upon free speech" (fn. omitted)]; Utter, The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment (1985) 8 U. Puget Sound L.Rev. 157, 169 ["Although the [Robins] court did not expressly state that the California Constitution had no state action requirement, the Washington court has interpreted Robins as impliedly abandoning any state action requirement for the California Constitution" (fn. omitted)].)

n5 (See, e.g., Fiesta Mall Venture v. Mecham Recall Committee (1988) 159 Ariz. 371 [767 P.2d 719, 724] (Fiesta Mall Venture) [finding no state constitutional right to free speech in a privately owned shopping center]; Cologne v. Westfarms Assocs. (1984) 192 Conn. 48 [469 A.2d 1201, 1210] (Cologne) [same]; Cahill v. Cobb Place Associates (1999) 271 Ga. 322 [519 S.E.2d 449, 450-451] (Cahill) [same]; Eastwood Mall, Inc. v. Slanco (1994) 68 Ohio St.3d 221 [626 N.E.2d 59, 61-62] (Eastwood Mall) [same]; Woodland v. Michigan Citizens Lobby (1985) 423 Mich. 188 [378 N.W.2d 337, 358 (Woodland) [same]; State v. Wicklund (Minn. 1999) 589 N.W.2d 793, 802 (Wicklund) [same]; S.O.C., Inc. v. Mirage Casino-Hotel (Nev. 2001) 23 P.3d 243, 250 (S.O.C.) [declining to adopt the rationale of Robins]; SHAD Alliance v. Smith Haven Mall (1985) 66 N.Y.2d 496, 501, fn. 5 [498 N.Y.S.2d 99, 102] (SHAD Alliance) [finding no state constitutional right to free speech in a privately owned shopping center]; Southcenter Joint Venture v. National Democratic Policy Com. (1989) 113 Wash.2d 413 [780 P.2d 1282, 1292] (Southcenter Joint Venture) [same]; Jacobs v. Major (1987) 139 Wis.2d 492 [407 N.W.2d 832, 841] (Jacobs) [same]; but see Bock v. Westminster Mall Co. (Colo. 1991) 819 P.2d 55, 61-63 [finding a state constitutional right to leaflet in a privately owned shopping center]; New Jersey Coalition Against War v. J.M.B. Realty Corp. (1994) 138 N.J. 326 [650 A.2d 757, 780, 52 A.L.R. 5th 777] (New Jersey Coalition Against War) [same].)

Various state courts have also held that a state constitutional provision concerning the right to petition does not protect the solicitation of signatures in a privately owned shopping center. (See, e.g., Stranahan v. Fred Meyer, Inc. (2000) 331 Or. 38 [11 P.3d 228, 243] [finding no state constitutional right to petition in a privately owned shopping center]; Citizens for Ethical Gov. v. Gwinnett (1990) 260 Ga. 245 [392 S.E.2d 8, 9-10] [same]; but see Batchelder v. Allied Stores Intern., Inc. (1983) 388 Mass. 83 [445 N.E.2d 590, 595, 38 A.L.R.4th 1206] [finding a state constitutional right to solicit signatures in a privately owned shopping center pursuant to a clause in the Massachusetts Constitution concerning freedom and equality of elections].)

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Nonetheless, Robins has been the law in California for over 20 years. ^HN8

Whether or not we would agree with Robins's recognition of a state constitutional right to free speech in a privately owned shopping center if we were addressing the issue for the first time, we are obliged to follow it under principles of stare decisis. ^CA(2)

(2) " '[E]ven in constitutional cases, the doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification." ' " ( Dickerson v. United States (2000) 530 U.S. 428, 443 [120 [**803] S. Ct. 2326, 2336, 147 L. Ed. 2d 405], quoting