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Jim Porter: The Galleria is a public area

Youand#8217;ve been to the Galleria in Roseville. It is an indoor shopping center containing over one million square feet of retail space with over 140 tenants, including four major department stores. Boy, I wish we had a Galleria in Truckee or Tahoe City.

Share my Christian faith

Or not. Matthew Snatchko, a youth pastor, wanted to and#8220;share his Christian faith,and#8221; so he went to the Galleria and engaged in conversations with shoppers. Long story short, he was arrested. He sued for everything from false imprisonment and#8212; to a violation of his rights of free speech under the California Constitution, which became the focal point of this new Court of Appeal case.



Galleriaand#8217;s rules

The Galleria has comprehensive rules governing its common areas, which its attorneys drafted to be in compliance with shopping center free speech cases. The trial court found the rules and#8220;content neutraland#8221; and ruled for the Galleria.



In a nutshell, the rules, at least as summarized by the Court of Appeal, allowed conversations between strangers on matters related to the Galleria but required a permit four days in advance for any other speech or activity, like consensual, spontaneous conversations between strangers on topics unrelated to shopping.

The Court therefore determined the Rules were content-based, meaning they restricted some topics but not others. Non mall-related speech, like a religious solicitation, was disfavored. That made the rules subject to and#8220;strict scrutinyand#8221; and you know what happens then.

The rules violated Article I, section 2, of the California Constitution, and#8220;and#8230; every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right and#8230; This provision is broader and more protective than the free speech clause of the First Amendment.and#8221;

Coup de grace

What may have been the coup de grace for the Galleria was when a senior manager, when asked in a deposition, and#8220;What if someone is excited about the Super Bowl and says to a stranger, and#8220;Hey, hope you are supporting the Patriots,and#8221; or and#8220;Hope youand#8217;re supporting the Giants this week.and#8221; Would that violate the rules? The senior manager replied, and#8220;You can go in and fill out an application.and#8221; Wrong answer.

Rules overbroad

The Court of Appeal found the Galleriaand#8217;s Rules did not meet the strict scrutiny test or even the lesser and#8220;intermediate scrutinyand#8221; standard, which I have never heard of. Plus, they were overbroad and vague, although I am not sure I know the difference or if there is a difference. The Galleriaand#8217;s laudable goal of providing stress-free shopping was insufficient justification.

As the Court wrote, the rules and#8220;prohibit even casual conversation between teenagers who go to the mall to meet, socialize, and talk with other teenagers. Spur-of-the-moment conversations between strangers who go to the mall to exercise in the common areas are banned. The Rules forbid strangers to converse in order to while away the time as their spouses shop (been there, done that). Under the language of the Rules, strangers could not choose to engage in impromptu chit chat while they stand in a check-out line in a common area.and#8221;

New justice

The justice writing the opinion was Tani Cantil-Sakauye, who will soon be Chief Justice of the California Supreme Court. The two concurring justices on the Sacramento Court of Appeal are highly regarded, so this case most certainly will become California law. Free speech rules and#8212; even in private shopping centers.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s web site http://www.portersimon.com.


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