Sacramento - Roseville galleria's rules deny free speech, state appeals court says

Roseville galleria's rules deny free speech, state appeals court says

dwalsh@sacbee.com

Published Saturday, Aug. 14, 2010

Owners of the Westfield Galleria at Roseville didn't want strangers talking to each other if they weren't talking about the mall.
They even had rules to enforce that behavior, but a state appellate court has starkly declared that the mall's attempt to regulate conversation is unconstitutional.
A three-judge panel of the 3rd District Court of Appeal said Wednesday in a 43-page opinion that the company's rules of conduct "are unconstitutional on their face" under the California Constitution's free speech guarantee.
The specific rule at issue prohibits a person in the center's common areas from "approaching patrons with whom he or she was not previously acquainted for the purpose of communicating with them on a topic unrelated to the business interests" of the mall or its tenants.
The case arose out of the mall's "citizen's arrest" of a 27-year-old pastor, who had gone to the shopping center to talk to others about his faith.
The appellate court's opinion dealt one way or another with possible conversations that the rules would prohibit:
Weather is a no-no, unless one is intuitive enough to observe how it may be affecting the size of the crowd at the mall. Teenagers who use the common areas for social gatherings, not necessarily limited to contemporaries they already know, are out of luck. Should someone stop you and ask directions to Sutter-Roseville Medical Center, you would be well advised to blow them off, lest your humanitarian instincts lead you astray.
Another rule requires written applications for permission to make such contacts "to be submitted to the mall's security office four days in advance. Mall management will review the application to determine if the proposed activity is permissible."
Writing on behalf of the unanimous appellate panel, Associate Justice Tani Cantil-Sakauye concluded "the rules allow conversation between strangers on matters related to the Galleria … while prohibiting peaceful, consensual, spontaneous conversations between strangers in common areas of the mall on topics unrelated to the … mall."
The rules also provide that an application may only be for proposed conversation between two persons, thus prohibiting altogether talk among more than two unacquainted persons on subjects other than the Galleria, she noted.
Westfield spokeswoman Katy Dickey said in a prepared statement: "We are disappointed that the court … determined that the rules in question did not satisfy the required legal standard for reasonable time, place and manner restrictions. We are reviewing the court's decision and will consider our options … including appeal to the California Supreme Court."
Matthew McReynolds, an attorney for Matthew Snatchko, the youth pastor who challenged the rules, hailed the decision as "a huge victory for free speech and common sense. The opinion is a great credit to Justice Cantil-Sakauye – very thorough, well thought-out."
Acting Presiding Justice Ronald B. Robie and Associate Justice M. Kathleen Butz joined in the opinion.
The panel reversed Placer Superior Court Judge Larry D. Gaddis' ruling in favor of Westfield LLC and sent the case back to him for further proceedings.
Hoping for opportunities to share his Christian faith, Snatchko, a Roseville resident, often went to the Galleria, the largest shopping mall in Northern California. While in a common area one evening, he approached three young women who agreed to talk with him on subjects that included principles of his faith.
A store employee called security and an officer responded and told Snatchko to stop talking to the women or leave the mall. When he refused, the officer called for backup and a senior security officer responded and ordered Snatchko out. He again refused, and found himself under "citizen's arrest," handcuffed and turned over to Roseville police.
He was booked and released, and when he appeared in court for arraignment, all charges were dropped. The Placer County District Attorney's Office agreed that Snatchko was "factually innocent," and a Superior Court judge took the unusual step of a formal finding of factual innocence.
Snatchko sued Westfield, Professional Security Consultants, the security firm employed at the Galleria, and Richard Flores, the officer who made the arrest. He seeks money 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 California's Unruh Civil Rights Act.
Westfield defended the rules several ways, arguing that they:
• "Protect our tenants and the thousands of customers at the mall each day by ensuring a safe and secure shopping, dining and entertainment environment while recognizing the requirements of California law."
• Promote safety "through the avoidance of fire code violations and the disruption and congestion that could result from unregulated expressive activities."
• Promote "the convenience of mall patrons."
But the justices didn't buy any of those rationales.
The opinion quotes from the deposition of Gavin Farnam, the senior general manager of the Galleria.
"If you're going to talk about any other subject (other than the mall) … then you're prohibited from going up to strangers and speaking to them, is that correct?" he was asked by a Snatchko attorney.
"That's not correct," Farnam testified. "It doesn't prohibit you. It just means you have to come in and fill out the application for third-party access for noncommercial" speech.
What if, the attorney postulated, he is excited about the Super Bowl and says to a stranger, "Hey, hope you're supporting the Patriots," or "Hope you're supporting the Giants this week." Would that violate the rules? he asked.
"You can go in and again fill out a third-party access, if that's what a person chooses to do," said Farnam.