The California Court of Appeal has decided, in Snatchko v. Westfield LLC, that the owner of a shopping mall called the Roseville Galleria, north of Sacramento, violated the speech rights of a Christian youth pastor when its staff turned him over to police for having a religious conversation with two other mall patrons.
The decision is significant statewide for several reasons. First, it extends and reinforces a line of cases from the state’s supreme court and other appellate courts affirming the California constitution’s broader protection for speech — one which, unlike the federal First Amendment, forbids censorship by shopping mall proprietors as well as government agencies.
In this state, if private enterprise recreates a multi-merchant environment projecting a Main Street ambiance within its walls, inviting patrons to stroll, relax and linger as they might on a downtown city sidewalk, then it may no more act to control what the patrons may say or hear than might city officials themselves.
Reasonable rules on the time, place and manner of speech can be enforced to prevent congestion or disturbances of the peace, for example, but not a ban on discussing certain topics, or (as was the case in the Roseville Galleria) a ban on discussing any topic but shopping.
The court found that this grotesquely totalitarian gag failed to meet even the most relaxed legal standard for justifying speech curbs.
From the court’s ruling:
Westfield‟s Rules burden substantially more speech than is necessary to further its legitimate safety and convenience interests. The Rules prohibit strangers from consensually engaging in peaceful spontaneous political or religious discussions even if they do not: converse loudly, attract a crowd, block any ingress/egress to the mall, its tenants or their activities, distribute any literature, hold any signs or placards, request signatures for any petition, solicit any contributions, or compromise any fire or other safety precautions.
In other words, the Rules prohibit unplanned classic pure free speech between strangers who mutually agree to converse and who cause no disturbance of the peace or otherwise burden, interfere with, or impose additional risk on the operation or enjoyment of the mall.
Moreover, by prohibiting or restricting all speech between strangers on topics that are not related to the activities of the mall, its tenants or their sponsored activities, the Rules not only prohibit strangers from consensually engaging in peaceful political or religious discussions as we have described, they also 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. 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.
Another interesting aspect of the decision is its author, Associate Justice Tani Cantil-Sakauye of the Third District Court of Appeal. Governor Schwarzenegger recently nominated her to replace Ronald George to head the state supreme court as chief justice of California. For those who care about free speech protection, it is reassuring to think that George’s high level of solicitude for that right would be upheld by his successor.
But the most striking — and discouraging — element of the case is the repression that led to it. Public declarations of religious adherence get increasingly less respect from the powers that be in California, be they governmental or commercial.
The Roseville episode is a reminder that business interests, normally thought of as socially conservative, will not hesitate to banish religious expression — and seek official backup in doing so — when they think it might alienate customers. Given business priorities overall, that is perhaps unsurprising.
But government has no such priorities, and no such excuses. And yet its increasingly tin ear for the legitimacy of religious views in the “marketplace of ideas,” ranging from insensitivity to outright hostility, can be arresting, even depressing.
Here are a few recent examples:
- A Merced elementary school forced a sixth grader to stop wearing a T-shirt that, without harrowing language or images, opposed abortion; the school district has just settled the parent’s legal challenge rather than face it in federal court.
- San Diego County officials withdrew a cease-and-desist order issued to a pastor who held a small Bible study in his home, apologizing for intrusive questions about the meetings. For five years the pastor had hosted the sessions for about fifteen people. When a neighbor’s visitor filed a complaint about parking overflow, county officials questioned the pastor’s wife about the nature of the meetings, asking whether participants said “Amen” or “Praise the Lord.”
- UCLA, responding to media pressure, reversed an official’s decision and agreed to allow a graduating student, Christina Popa, to thank Jesus in her personal statement. Popa said she was told by a faculty adviser, who had been selected to read aloud students’ personal statements at the department’s commencement, that she would instead read the reference to “my Lord and Savior Jesus Christ” as simply “God.”
- Yuba Community College settled a lawsuit brought on behalf of a student, ending a campus policy that required students to obtain a permit to exercise “free speech” during two allotted hours per week. Ryan Dozier had been threatened with arrest and expulsion if he continued sharing the gospel on campus between classes.
- In Riverside County, two anti-abortion activists were charged with disturbing the peace and obstructing a peace officer in a November 2007 incident. Joey Cox, bothers Jason and James Conrad, and five other members of an anti-abortion group visited Chaffey College to peaceably hold signs and hand out pro-life literature. All eight of the visitors, including their signs and literature tables, were confined to a space too small to contain them. Cox said that when he went to the campus police station to ask who issued this restriction, he was escorted behind locked doors, shoved against a wall, handcuffed, and searched by three officers. The Conrad brothers were taken to trial but acquitted by the jury.
Freedom of religion is not only co-equal in linkage with freedom of speech and press, it is its more hard-earned core. The repression of speech and press remembered and dreaded by our constitutional founders tended to boil down to the silencing of one or two men (pamphleteers and printers) at a time on behalf of one man or woman — the monarch.
For the victims this censorship could be painful, even fatal, but incurring such punishment was easily avoidable in a society with few private orators and writers. In contrast, the elevation of one religion to official status, or the persecution of other creeds, tended to marginalize, terrorize or even annihilate people by the thousands, or tens of thousands, and there was no way to avoid this scourge but by denying who you were. It was the recurrent plague of European history, and the virus survives.
This is the lesson forgotten, or never learned, by those we see today seeking to use government either to exalt and arm religious belief with official muscle — or to dismiss and disable it altogether from playing its part in keeping conscience, decency and charity alive in our unpretty world.
Terry Francke is Voice of OC’s open government consultant and general counsel for Californians Aware. You can reach him directly at terry@calaware.org. And add your voice with a letter to the editor.