FAMILY PLANNING ALTERNATIVES, INC., et al., Plaintiffs and Respondents, v. Steven J. PRUNER, et al., Defendants and Appellants.
Appellants Thomas Tami and Steven Pruner appeal from the entry after court trial of a permanent injunction prohibiting their anti-abortion activities on commercial, private property owned by Guiv Parineh and partly leased to Family Planning Alternatives, Inc. (FPA).1 The primary issue on appeal is whether appellants have a federal or state constitutional right of access to this private property for the purpose of exercising their rights of free speech.
Appellants challenge that part of the judgment stating: “Defendants have no right enter [sic ] or trespass on the real property, commonly known as 505 West Olive Avenue, Sunnyvale, California ․ except to conduct legitimate business with the offices located on the property.” “Defendants, their agents, servants or employees, all persons in active concert or participation with them, or any person served with a copy of this order, are hereby enjoined and restrained form [sic ] directly or indirectly: [¶] a. Entering or trespassing on the property, including the buildings, lawns, walkways, and parking lot. [¶] b. Obstructing any sidewalk, driveway, or any other means of entering or exiting the property; and [¶] c. Posting or placing any signs or other objects on the property, including the buildings, lawns, walkways and parking lot areas.” Appellants challenge not only the denial of a right of access, but also the propriety of enjoining persons not parties to this action.
Appellants finally challenge as unsupported by evidence the following part of the judgment allowing them to protest on the nearby public sidewalk “subject, however, to the following restrictions: [¶] ․ b. Signs, which must be carried, shall not be larger in size than 4 feet on any side, i.e., the maximum size of any sign is 4 feet by 4 feet․” Appellants do not otherwise challenge the sufficiency of the evidence to support the injunction. On appeal we resolve factual conflicts and draw inferences in support of the judgment granting injunctive relief. (Arrowhead Mut. Service Co. v. Faust (1968) 260 Cal.App.2d 567, 577, 67 Cal.Rptr. 325; cf. People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 516, fn. 3, 206 Cal.Rptr. 164.) For the reasons stated below, we will affirm the judgment, finding no error.
A. FPA's Business
A woman seeking an abortion in Sunnyvale can obtain one at FPA on Tuesdays and Thursdays, when it is open between 9 a.m. and 9 p.m., and on Saturdays, when it is open between 8:30 a.m. and 1:30 p.m. FPA performs an average of 30 to 50 abortions a week and about 2,000 a year. Abortions are about 10 percent of FPA's work. It also provides general gynecological care, pregnancy testing, birth control, female sterilization, premarital blood work, and treatment of sexually transmitted diseases. It is also open Mondays, Wednesdays, and Fridays from 9 a.m. to 5 p.m. Saturday is the most convenient time for patients who work or attend school.
FPA is a nonprofit corporation licensed by the State Department of Health Services as a community clinic. Its patients come primarily from Santa Clara County. Most are young women between the ages of 18 and 24. Two-thirds are low-income patients who are charged little or nothing. Out of a total 1989 revenue of $1,347,638, FPA received $229,177 from the State Office of Family Planning and another $183,545 from the Medi–Cal program. In other words about 30 percent of its total revenue was from state funds.
B. The Layout and Tenants of the Property
Although FPA's address is 505 West Olive Avenue, suite 210, its parking lot is reached most readily from Charles Avenue, which runs roughly north and south and intersects Olive at an oblique angle. FPA is located in the 200 building, one of seven single-story office buildings 2 on two adjoining parcels totaling about 5.6 acres owned since the mid–1970's by Guiv Parineh. The buildings are on a 3.8 acre parcel. The parking lot is on both parcels. The other parcel is otherwise empty. Parineh's property is zoned for offices only, not retail.
FPA's offices parallel Charles Avenue and are about 100 to 150 feet from the sidewalk. There is an unobstructed view of the sidewalk from the front of FPA. Facing FPA from Charles Avenue, the 100 building extends roughly east toward Charles Avenue from FPA's left front. The 300 building extends roughly west from FPA's right side away from Charles Avenue. Three more buildings mirror this layout if the mirror were held north to south behind FPA. A seventh building is lengthwise between the two three-building structures. All the buildings are connected by elevated, partially covered walkways.
The parking lot adjoins the buildings to their north. There is no parking in the area of the lot directly in front of buildings 100 and 200 because it is a fire zone.
The City of Sunnyvale owns the property between Parineh's and Olive and Charles Avenues. The triangular portion nearest Charles is simply greenery. The Sunnyvale library is to the south and west of Parineh's three most westerly buildings. The library parking lot is directly west of Parineh's property. Pastoria Avenue runs parallel to Charles on the far side of the library. FPA's parking lot can be reached from Pastoria.
Parineh has approximately 35,000 square feet for lease in the seven buildings. FPA leases one building totaling 4,800 square feet. A City of Sunnyvale related jobs for youth program called NOVA leases all 5,275 square feet of building 500, plus two other offices totaling 950 square feet in the 300 building and one 750 square-foot office in building 600. The City of Sunnyvale Parks and Recreation Department also leases 2,250 square feet, about half of building 100. Parks and Recreation is open on Saturdays as are some other tenants. The lease to Parks and Recreation is temporary while other quarters are under construction. The City of Sunnyvale leases another three offices totaling 1,125 square feet in building 600. The City of Sunnyvale and NOVA thus lease 10,350 square feet, almost 30 percent of Parineh's buildings. About one-quarter of this is temporary. The Santa Clara County Cities Association leases 200 square feet in building 600.3
On a typical weekday, about 150 people work in the offices on Parineh's property and the same number patronize the offices.
One tenant of six years left building 100 complaining about the abortion protests described below. Prior to Parks and Recreation temporarily leasing space in building 100, it had been vacant for a year and a half. The owner charges FPA a premium of $1.60 a foot in rent (while the average for a large space is $1.35 a foot) so FPA can share the burden of the protests.
C. Abortion Opposition Activity
FPA has occupied the premises since September 1973. During the first two years, one man protested abortion in the parking lot about once a week carrying a sign and wearing a white laboratory coat with red all over it. Two women used to walk up and down in the parking lot on Tuesdays for about an hour carrying a sign. For two months around 1984, two women set up a card table in the parking lot with coffee and cookies and tried to discourage people from using FPA. As the trial court concluded, “Protest activities took place occasionally during the 1970's and early 1980's.”
Abortion opposition resumed on the premises on Saturday, October 29, 1988, when Operation Rescue, an anti-abortion group, organized a protest where over 400 protesters blockaded FPA and prevented it from opening. More than 200 people were arrested. Another large protest was staged later.
Appellant Thomas Tami has engaged in abortion opposition at FPA since October 1988. In the beginning, he “went only occasionally to picket in the parking lot and the public walkways․” In February 1990 he “began going out every weekday as well as Saturdays.” He tries to dissuade women from having abortions by talking and providing printed material about abortion alternatives, abortion risks, and fetal development. According to FPA's president and chief executive, Tami usually is the sole protester present on weekday mornings. Sometimes Tami walks up the stairs or the wheelchair ramp leading to FPA. Sometimes he walks onto the walkways. He advises people that FPA “kill[s] babies.”
There is more abortion opposition on Saturdays while FPA is open. Usually 10 to 20 protesters show up. They often bring signs with an anti-abortion theme, which are placed in a bicycle rack, against bushes, and on the ground in front of FPA. Photographs in evidence show the signs typically include color photographs that purport to depict a bloody, aborted fetus.
Appellant Steven Pruner appears about once a month on a Saturday. He tends to bring larger signs and larger crowds. Some of his signs are about eight by five feet. One sign is hinged together so it extends to about 15 feet. He has twice brought a bullhorn, aimed it at FPA, and played prerecorded anti-abortion messages through it. FPA plays a radio outside to drown out the bullhorn messages.
On a “big picket” day once every two months, 50 to 60 protesters appear. Most congregate on the parking lot and some stand on the walkways in front of FPA. Some protesters talk to potential patients of FPA, some yell at them. Sometimes the protestors sing loudly enough to be heard inside FPA. They raise their voices when FPA's door opens. Sometimes signs are pressed against FPA's windows aimed inward, so FPA closes its drapes.
Protesters sometimes question FPA's staff about the day's “body count” and tell them to find other work. FPA's potential patients have to walk past the abortion appellants. Some patients are very upset and asked if FPA cannot do something. The opposition increases the anxiety of patients who are already anxious. Some need to be comforted and calmed down by FPA's staff. Others shrug off the opposition.
Since October 1988 FPA has provided volunteer escorts for potential patients. FPA used to provide six to eight escorts on Saturdays but in 1990 it reduced their number to two to five since its neighbors complained. The escorts identify themselves with orange vests lettered “FPA clinic escort.” On a Saturday when someone drives into the parking lot, the escorts and the appellants race each other to the vehicle. The escorts ask if the occupants want an escort to FPA and occasionally also ask if they would like to wear headphones playing music. The appellants offer anti-abortion literature, sometimes holding it in the patient's face. If a patient refuses, sometimes the appellants will leave her alone and other times they will persist, occasionally following her up to FPA's front door. The trial court concluded that protest activities have resulted in “[i]mpediment of ingress and egress to” FPA's offices.
One to three Sunnyvale police officers are present on Saturdays during the abortion protests. The police tend to monitor the abortion opposition without intervening. They used to keep people off the walkways but they no longer do so. They also used to ban very large signs.
In May 1990 the owner put up City of Sunnyvale approved signs at every entrance to the parking lot stating: “Private property, no loitering or trespassing. For use of tenants, their employees, and clients.” The owner has asked the protesters to leave and he has called the police to get them to leave. Protests have caused damage to walkway railings and extra cleanup. The protesters do not have his permission to post signs or remain on his property. The trial court concluded the protest activities have resulted in “[e]conomic loss to the Plaintiffs.”
FPA and Parineh filed this action in October 1990 after the abortion opposition activity escalated on October 13, 1990, with about 75 protesters. Pruner admits organizing this event.
Further facts are stated where relevant.
1. Do Appellants Have a Federal or State Constitutional Right of Access to FPA's Private Property?
The First Amendment to the United States Constitution declares that Congress shall make no law abridging the freedom of speech. This freedom is among the fundamental liberties protected from impairment by the states by the due process clause of the Fourteenth Amendment. (Stromberg v. California (1931) 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Near v. Minnesota (1931) 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357.) In areas, such as public streets, sidewalks, and parks, historically associated with the exercise of First Amendment rights, the government may enforce content-based exclusions only on a showing that the regulation is necessary to serve a compelling state interest. (Carey v. Brown (1980) 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263.) And in one situation—where private property has assumed all the attributes of a municipality—even private property may be used by the public in the exercise of First Amendment rights. (Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Hudgens v. NLRB (1976) 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196.) Since the private property at issue in this case, however, has not assumed all the attributes of a municipality, appellants have no First Amendment right of access to it.
We next address whether appellants have a right of access under the guarantee of freedom of speech in the California Constitution, which is both “ ‘more definitive and inclusive than the First Amendment․’ ” (Canaan v. Abdelnour (1985) 40 Cal.3d 703, 715, fn. 9, 221 Cal.Rptr. 468, 710 P.2d 268.) 4 In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 905, 153 Cal.Rptr. 854, 592 P.2d 341 (Pruneyard ), the California Supreme Court, citing Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 562, 92 S.Ct. 2219, 2225, 33 L.Ed.2d 131 and Hudgens v. NLRB, supra, 424 U.S. 507, 96 S.Ct. 1029, noted “that the First Amendment did not protect picketing in a shopping center.” However, it held that the California free speech guarantee did protect the right of students in a privately owned shopping center to circulate petitions and gather signatures in opposition to a United Nations resolution against Zionism.
In reaching its decision, the court focused on the unique role played by shopping centers in American society. “Central business districts [have] ․ yield[ed] their functions more and more to suburban centers,” which are “ ‘becoming “miniature downtowns.” ’ ” (Pruneyard, supra, 23 Cal.3d at pp. 907, 910, fn. 5, 153 Cal.Rptr. 854, 592 P.2d 341.) Because the public is “invited to visit for the purpose of patronizing the many businesses,” the shopping center assumes importance “as a place for large groups of citizens to congregate․” (Id., at pp. 902, 910, fn. 5, 153 Cal.Rptr. 854, 592 P.2d 341.) Under these circumstances, a shopping center “can provide an essential and invaluable forum for exercising [free speech and petition] rights.” (Id., at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.)
The court admonished, however, “ ‘[i]t bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations [citation] would not markedly dilute defendant's property rights.’ ” (Pruneyard, supra, 23 Cal.3d at pp. 910–911, 153 Cal.Rptr. 854, 592 P.2d 341, quoting from Mosk, J. dis. opn. in Diamond v. Bland (1974) 11 Cal.3d 331, 345, 113 Cal.Rptr. 468, 521 P.2d 460 (Diamond II ).)
Pruneyard cited In re Lane (1969) 71 Cal.2d 872, 79 Cal.Rptr. 729, 457 P.2d 561 for the proposition that Lane “extended the assurance of protected speech to the privately owned sidewalk of a grocery store.” (23 Cal.3d at p. 909, 153 Cal.Rptr. 854, 592 P.2d 341.) 5 It also cited with approval two other California opinions upholding free speech rights on private property, Schwartz–Torrance Investment Corp. v. Bakery & Confectionery Workers' Union (1964) 61 Cal.2d 766, 40 Cal.Rptr. 233, 394 P.2d 921 (union picketing at a shopping center) and In re Hoffman (1967) 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353 (antiwar protesting at the Los Angeles train station). The court noted “that those opinions cited federal law that subsequently took a divergent course,” 6 but reiterated that did “not diminish their usefulness as precedent.” (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at p. 908, 153 Cal.Rptr. 854, 592 P.2d 341.)
As noted above, Pruneyard focused its discussion on shopping centers, which had become the functional equivalent of traditional public forums such as public streets, sidewalks and town centers. Schwartz–Torrance also dealt with a shopping center; In re Hoffman with a large railway station which housed a restaurant, snack bar, cocktail lounge, and magazine stands in addition to facilities related to transporting passengers; and In re Lane with a large supermarket. How far the Pruneyard holding could be applied to other types of private property was yet to be determined. One point, however, was pertinent: “ ‘the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’ [Citation.]” (Schwartz–Torrance Investment Corp. v. Bakery & Confectionery Workers' Union, supra, 61 Cal.2d at p. 771, 40 Cal.Rptr. 233, 394 P.2d 921.)
Applying these precedents, two courts have recently addressed the application of California's free speech rights to the picketing of abortion clinics. Each has determined that abortion appellants have no constitutional right of access to abortion clinic parking lots. (Allred v. Shawley (1991) 232 Cal.App.3d 1489, 284 Cal.Rptr. 140; Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 286 Cal.Rptr. 427; accord, 73 Ops.Cal.Atty.Gen. 213 (1990).)
The Allred court devised a “road map” to “make travel through the maze” (232 Cal.App.3d at p. 1496, 284 Cal.Rptr. 140) of state free speech cases more understandable. It noted that the cases divided into three categories: (1) those concerning large privately owned shopping centers where the ideas presented were unrelated to the business of the center (e.g., Pruneyard ); (2) those on government-owned public property not traditionally open to the public (e.g., a prison parking lot and a nuclear weapons lab) where the information sought to be disseminated related to the institution's activities; and (3) those addressing smaller private centers or businesses where the speech was related to the business. Appellants claim they are in the third category, and we agree.
With respect to the third category, the Allred court suggested that the discussion should focus on (1) the degree of public invitation, (2) the nature of the expressive activity and whether it is disruptive or interferes with the usual business undertaken on the property, and (3) the relationship between the property and the ideas sought to be presented, including alternatives available to the protesters to express their views. (232 Cal.App.3d at p. 1501, 284 Cal.Rptr. 140.) Similarly, in Planned Parenthood v. Wilson, supra, the court enunciated “two principal factors in determining whether private property is to be considered quasi-public property subject to the exercise of constitutional rights of free speech and assembly: to wit, the nature, purposes, and primary uses of the property, and the extent and nature of the public invitation to use the property.” (Id., 234 Cal.App.3d at p. 1671, 286 Cal.Rptr. 427, citing 73 Ops.Cal.Atty.Gen. 213, 222–223, which in turn relied on precedent from other states which, like California, had free speech provisions in their constitutions broader than those in the federal Constitution.) Combining Planned Parenthood v. Wilson and Allred, four factors emerge. We now apply them to the facts of this case.
The Nature, Purposes, and Primary Uses of the Property
This private property consists of seven single story office buildings. Some of the offices are leased by the City of Sunnyvale.7 There are no restaurants, shops, theaters or other types of retail establishments. In fact, retail use is prohibited by the zoning laws. Only 150 persons visit the complex each day. (Another 150 work there.) Like the medical center in Planned Parenthood v. Wilson, respondent's offices “offer professional and personal services to specific clientele. It is for use only by individuals with specific business purposes, such as employees, clients and prospective clients of the tenants.” (Id., at pp. 1671–1672, 286 Cal.Rptr. 427.) The nature of FPA's services are personal and often intimate. They call for a quiet, nonthreatening, and confidential environment. (See 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, 1125–1142.)
The nature, purpose, and primary use of this property differs from a large retail establishment, such as a shopping center, where members of the public “congregate, relax, visit, seek out entertainment, browse and shop for personal, household or general business merchandise.” (Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at pp. 1671–1672, 286 Cal.Rptr. 427.) It also differs from a large supermarket, the private property involved in In re Lane. This property attracts only an estimated 150 clients a day, and those who use the limited range of services offered by FPA or the other tenants constitute a small subset of the local citizenry. In contrast, the entire public needs food, paper products, soap, clothes and the myriad of other products available at a large supermarket.
Moreover, the use of the specific property that is the focus of this injunction—i.e., the parking lot of the complex—has an even more limited nature, purpose and use. Each lot has a sign indicating it is private property and proclaiming that its use is restricted to tenants, their employees, and clients. (Accord 73 Ops.Cal.Atty.Gen., supra, at p. 223.)
Nature of the Public Invitation
Appellants agree, as they must, that “[a]ccess to private property for expressive activities initially involves analysis as to whether the property is open to the public in general.” Appellants contend Parineh opened his property to free speech activity by not objecting to occasional abortion protests in the 1970's, by permitting FPA's escorts, and by allowing Congressman Mineta to speak in the parking lot at the opening ceremony for NOVA. However, as soon as protest activities increased in the late 1980's, Parineh posted signs at each entry restricting access to tenants and their clients. Furthermore, he objected to the presence of FPA escorts and he gave permission for Congressman Mineta to give the opening ceremony. Parineh, like the owner in Planned Parenthood v. Wilson made clear that his property was not open to the public in general: “Although members of the public are invited to avail themselves of the particular services performed by specific tenants providing medical services, they are not invited to congregate, relax, visit, seek out entertainment, browse and shop for personal, household or general business merchandise.” (Id. at pp. 1671–1672, 286 Cal.Rptr. 427.)
As the court explained in Allred v. Shawley, supra, 232 Cal.App.3d 1489, 284 Cal.Rptr. 140, the nature of the public invitation to use the abortion clinic property was significantly different from the invitation to use the supermarket in In re Lane, supra. “Far from being a retail store, which holds out an invitation to the entire buying public in general, the professional center serviced mainly prearranged clientele. It was not fully open to the local community; nor did it provide services which were essential to all community members․ Retail sales were specifically forbidden on the premises.” (Id. at p. 1501, 284 Cal.Rptr. 140.)
Disruption or Interference with the Usual Business Undertaken on the Property
After a full trial in which witnesses were sworn and examined and evidence taken, the court issued its statement of decision. It found inter alia that appellants' protest activities resulted in “[i]mpediment of ingress and egress to the offices leased by” FPA, and “[e]conomic loss to Plaintiffs.” The facts as recited above clearly support the trial court's finding that appellants' protest activity both disrupted and interfered with the property's use.
Moreover, the facts here are virtually identical with those described in Allred: “[I]nterference with [the abortion clinic's] business was an avowed purpose of the appellants. Face to face (if not face in face) encounters were the rule. Appellants here were approaching ․ patients while still in their cars in the parking lot, then following them to the door of the building. There is evidence that the petitioners interfered with the patients' access to the building, emotionally upset several patients, and caused such confusion in the parking lot that at least one other tenant has already vacated the premises for this reason.” (Id. at p. 1503, 284 Cal.Rptr. 140; emphasis in original.) The clinic “was, in fact, forced to hire escorts to ensure unimpeded passage for its patients from their cars to the clinic door.” (Ibid.)
Relationship of Speech to the Property and Availability of Alternative Sites for Protesters
Appellants claim their free speech right of access derives in part from the fact that their message concerns one use of the property.8 They contend, “Where the message is related to the property, the California Supreme Court requires that paramount weight be afforded to the fundamental right of free expression, and the need to accommodate effective communication.” (Emphasis in original.) They urge that “the appropriate standard is that applied [in] ․ [t]he paradigm labor case[,] In re Lane․”
Appellants argue that Lane compels a right of access to private property in all cases where the free speech message is related to the property, subject only to time, place, and manner restrictions. We do not read Lane so broadly. The anti-abortion protesters in Planned Parenthood v. Wilson, supra, and Allred, supra, also relied on Lane. Both courts found that case factually and legally distinguishable.
In Lane, the court held that the non-employee union picketer's free speech rights “should be accorded precedence over the mere ‘naked title’ [citation] of market owner Stewart's interest in the premises.” (In re Lane, supra, 71 Cal.2d at p. 878, 79 Cal.Rptr. 729, 457 P.2d 561; emphasis added.) It reached this conclusion after reviewing the federal precedent in Marsh v. Alabama, supra, 326 U.S. 501, 66 S.Ct. 276 and Food Employees v. Logan Plaza, supra, 391 U.S. 308, 88 S.Ct. 1601 and the state precedent in Schwartz–Torrance Investment Corp., supra, 61 Cal.2d 766, 40 Cal.Rptr. 233, 394 P.2d 921, and In re Hoffman, supra, 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353. Marsh involved “sidewalks of the ‘business block’ of a company-owned town, which ․ was used by residents ‘as their regular shopping center’ ”; Logan Plaza and Schwartz–Torrance involved large shopping malls which had become “ ‘the functional equivalents of the streets and sidewalks of a normal municipal business district,’ ” and Hoffman involved “Union Station,” which is “a spacious area open to the community as a center for rail transportation.” The court noted that “so far as privacy rights were concerned a railway station is like a public street or park, and that noise and commotion are characteristic of the normal operation of such a station.”
Lane quoted from Logan Plaza the following: “ ‘We do not hold that respondents, and at their behest the State, are without power to make reasonable regulations governing the exercise of First Amendment rights on their property․ Thus where property is not ordinarily open to the public, this Court has held that access to it for the purpose of exercising First Amendment rights may be denied altogether.’ ․ [¶] ․ ‘ “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Logan Valley Mall is the functional equivalent of a ‘business block’ and for First Amendment purposes must be treated in substantially the same manner.' ” (In re Lane, supra, 71 Cal.2d at pp. 875–876, 79 Cal.Rptr. 729, 457 P.2d 561; emphasis added by Lane court.)
Lane noted that privacy rights were diminished in each of the cases because the entire public was invited to use the property. The sidewalk in Lane was no different: because it also was “open to the public,” it was “not private.” (In re Lane, supra, 71 Cal.2d at p. 878, 79 Cal.Rptr. 729, 457 P.2d 561.) No other countervailing interests were involved. The picketer was rightfully on the sidewalk due to the public invitation extended by the supermarket owner. As against the picketer's substantial interest in getting across his message, the supermarket owner had “mere ‘naked title.’ ” (Ibid.) Under these circumstances, the picketer was not required to use the public sidewalk, which was 150 to 280 feet away.
Allred distinguished Lane on the basis that (1) a professional center, unlike a large retail establishment, does not hold out an invitation to the entire buying public; (2) a professional center is not dedicated to public use; (3) the owner has interests other than “mere ‘naked title,’ ” including “ ‘freedom from disruption of normal business operations and freedom from interference with customer convenience,’ ” (quoting H–CHH Associates v. Citizens for Representative Government (1987) 193 Cal.App.3d 1193, 1208, 238 Cal.Rptr. 841); (4) safety hazards to exiting and entering cars, not a concern in Lane, justify even large shopping centers entirely banning leafleting in their parking lots; (5) alternative channels of communication were afforded from the public sidewalk, only 32 feet away; (6) union speech is entitled to extra protection as a matter of state labor law; and (7) the clients of the abortion clinic have a countervailing constitutional right to privacy guaranteed by both the federal and state constitutions. (Allred, supra, 232 Cal.App.3d at pp. 1501–1504, 284 Cal.Rptr. 140.)
Of these seven distinctions, appellants focus on the sixth, criticizing Allred for making “an impermissible distinction between the content of speech in preferring ‘labor’ communication to other political speech.” Assuming arguendo that their point is well-taken, we are still left with six distinctions which we believe are significant. The entire premise of Lane was that a large supermarket store owner's “mere title” could not defeat the free speech rights of persons rightfully on the property who were neither “obstruct[ing] [n]or unreasonably interfer[ing] with free ingress or egress to or from the premises.” (In re Lane, supra, 71 Cal.2d at p. 878, 79 Cal.Rptr. 729, 457 P.2d 561.) Here, appellants were not rightfully on the property because the property owner's invitation was restricted to tenants, employees, and their clients. Furthermore, as found by the court, appellants obstructed free ingress and egress.
Another important distinction between the anti-abortion cases and Lane concerns privacy.9 Lane dealt with leafleting on the premises of a large supermarket. “Certainly there is no privacy dimension inherent in this use of property, no intimacy or confidentiality in the transactions that occur there, and the market's customers have no emotional vulnerabilities which might aggravate the impact of the expressive materials being distributed. The analogy between a supermarket and a shopping center is far closer than is any proposed relationship between a supermarket and a medical clinic.” (Brownstein & Hankins, Pruning Pruneyard: Limiting Free Speech Rights Under State Constitutions on the Property of Private Medical Clinics Providing Abortion Services, supra, 24 U.C.Davis L.Rev. at p. 1146.)
Appellants attempt to distinguish Allred and Planned Parenthood v. Wilson on the basis that alternative channels of communication are not as available here as they were in Allred and Planned Parenthood v. Wilson because of the size and layout of the public sidewalks, the parking lots, and office buildings. (In Planned Parenthood, the sidewalk was located immediately in front of the medical clinic and there was only one entrance to the parking lot [234 Cal.App.3d 1662, 1665, 286 Cal.Rptr. 427], and in Allred, the sidewalk was 32 feet from the lobby and the only driveways crossed the sidewalk. [232 Cal.App.3d 1489, 1495, 284 Cal.Rptr. 140].) However, appellants overlook the fact the trial court determined that they could reach their targeted audience from the nearby public sidewalk. It found: “The sidewalks along Charles Avenue [where opponents have a right to protest] are approximately 100 to 150 feet from the main entrance to the offices leased by [FPA]. There is an unobstructed view between this main entrance and the sidewalks along Charles Avenue. Picketing and other activities conducted on the Charles Avenue sidewalk can be heard and seen when someone drives into the clinic's parking lot.”
To recapitulate our conclusions, neither the use nor nature of the private property at issue makes it the functional equivalent of a traditional free speech forum. It is open to the public only in limited ways and for limited uses. Nothing about the degrees of government tenancy or funding increases the extent to which it is open to the public. The owner has not dedicated the property to speech activity. Finally, appellants have an adequate, alternative speech site.
2. Is the Sign Size Regulation Constitutional?
Appellants also challenge the four feet square maximum sign size restriction on their activities on the nearby public sidewalk. They contend “[t]here is no basis in the record sustaining the propriety of such a ruling; and, if expression is to be kept at least 150 feet away from the main entrance of FPA, the requirement will interfere with the ability to effectively communicate.” Neither side cites any cases considering size signs restrictions.
As mentioned above, a public sidewalk is a traditional public speech forum. In such locations the government cannot prohibit all communicative activity. It can “ ‘enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’ ” (Frisby v. Schultz (1988) 487 U.S. 474, 481, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420.) In Regan v. Time, Inc. (1984) 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487, a four-justice plurality upheld a federal statute restricting, among other things, the size and color of photographic reproductions of currency in order to discourage counterfeiting. They observed that size and color restrictions were content-neutral. “Those limitations restrict only the manner in which the illustrations can be presented. They are thus similar to the decibel level restrictions upheld by this court in Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), and the size and height limitations on outdoor signs upheld by other courts, Baldwin v. Redwood City, 540 F.2d 1360, 1368–1369 (CA9 1976), cert. den. sub nom. Leipzig v. Baldwin, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); [citations]. Therefore, the size and color limitations pass the first of the three requirements of a valid time, place, and manner regulation.” (Id., 468 U.S. at p. 656, 104 S.Ct. at p. 3271.)
Baldwin v. Redwood City (9th Cir.1976) 540 F.2d 1360, upheld against a First Amendment challenge a city's ordinance regulating signs, which included a limitation that no temporary sign could exceed 16 square feet. (Id. at p. 1363.) After recognizing that signs were speech, the court stated: “The governmental interests relied upon to support the challenged regulations are public safety, order, and cleanliness; aesthetics and the quality of community life; administrative convenience; and equalization of opportunity among political candidates.” (Id. at p. 1366.) Only the last was constitutionally impermissible as suppressing communication. (Ibid.) Regarding the size restriction, the court concluded it did not significantly deter the exercise of First Amendment rights. It was content-neutral and contributed “to the appearance of the community and further other legitimate municipal interests.” (Id. at p. 1369.)
The degree of interference with the ordinary use of a public forum is relevant to appropriate regulations of speech activity thereon. H–CHH Associates v. Citizens for Representative Government, supra, 193 Cal.App.3d 1193, 238 Cal.Rptr. 841, upheld a prohibition of speech activity that impeded or interfered with a shopping center's business. (Id. at p. 1218, 238 Cal.Rptr. 841.) It found invalid a rule that required management approval of any posters, placards, and displays, because the rule provided “no definite, objective guidelines․” (Id. at p. 1216, 238 Cal.Rptr. 841.) The court, however, suggested that such guidelines “could be governed by considering whether the number and/or size of signs, posters or placards will interfere with and/or directly compete with business displays or logos.” (Id. at p. 1216, 238 Cal.Rptr. 841.)
The trial court's statement of decision does not explain the sign size restriction, but the intended decision stated it was imposed “[i]n the interest of vehicle safety.” An intended decision can be read to reveal the basis for the judgment. (Buckhantz v. R.G. Hamilton & Co. (1945) 71 Cal.App.2d 777, 781–782, 163 P.2d 756; 1st Olympic Corp. v. Hawryluk (1960) 185 Cal.App.2d 832, 838, 8 Cal.Rptr. 728; and cases cited by both.) Appellants do not contend traffic safety is not an important government concern. They simply contend the evidence did not support the restriction imposed.
There was no testimony specifically discussing traffic safety problems created by large signs. However, several photographs in evidence show the sizes of signs and the driveway entrance to the parking lot nearest FPA. One photo shows defendant Pruner displaying four posters in the bushes by the driveway entrance. The photographs provide substantial evidence supporting an inference that very large signs on the public sidewalk near the driveway could dangerously limit the view of traffic for incoming and outgoing vehicles. The sign restriction is narrowly tailored to prevent this danger and it does not deprive appellants of the ability to communicate with potential patients of FPA, many of whom will have to pass right by any sidewalk protesters in order to reach FPA. In short, the sign size restriction is constitutional.
3. Are Nonparties Validly Enjoined?
Appellants finally challenge the injunction as overbroad because it “purports to reach anyone served with it, although the person is neither named individually nor as a member of a class.”
“It is well established that an injunction may run to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders and abettors, though they were not parties to the action [citation].” (Pitchess v. Superior Court (1969) 2 Cal.App.3d 653, 656, 83 Cal.Rptr. 41.) FPA and the owner properly cite Ross v. Superior Court (1977) 19 Cal.3d 899, 905, 141 Cal.Rptr. 133, 569 P.2d 727, which quotes with approval a rejection by In re Lennon (1897) 166 U.S. 548, 554, 17 S.Ct. 658, 660, 41 L.Ed. 1110, of a due process challenge to a contempt judgment by a person found in violation of an injunction. “ ‘The facts that [the employee] was not a party to such suit, nor served with process of subpoena, nor had notice of the application made by the complainant for the mandatory injunction, nor was served by the officers of the court with such injunction are immaterial, so long as it was made to appear that he had notice of the issuing of an injunction by the court.’ ․” Ross, supra, further quotes with approval from Berger v. Superior Court (1917) 175 Cal. 719, 721, 167 P. 143, “ ‘[T]he whole effect of this is simply to make the injunction effectual against all through whom the enjoined party may act, and to prevent the prohibited action by persons acting in concert with or in support of the claim of the enjoined party, who are in fact his aiders and abettors.’ ” (19 Cal.3d at p. 906, 141 Cal.Rptr. 133, 569 P.2d 727.)
Although the nonparties in Ross, supra, were bound as “agents” of enjoined parties (19 Cal.3d at 906–909, 141 Cal.Rptr. 133, 569 P.2d 727), we disagree with appellants that Ross is limited to similar facts. The underlying logic is that an injunction operates on those who have notice of it, whether or not parties to the original action for injunction. Since the injunction here is designed to apply only to those with actual notice of it, it is not impermissibly overbroad.
The judgment is affirmed.
1. Defendant Barbara Bridges was also specifically enjoined, but she does not appeal.
2. The trial court in its statement of decision concluded there are five buildings. We are unable to find any evidentiary support for this conclusion. The property owner testified there were seven buildings. A rent printout that was in evidence reflects seven buildings. An aerial photograph shows seven buildings, although two groups of three appear to share the same roofs.
3. The trial court concluded that 5,775 square feet is leased by public agencies. It is unclear from the record to which leases this finding refers.
4. Article 1, section 2, provides, “(a) 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.”
5. In view of its earlier admonition that its holding did not apply to a “modest retail establishment” (Pruneyard, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341), the court apparently determined that the 24,000 square foot “large ‘super-market-type’ grocery store” (In re Lane, supra, 71 Cal.2d at p. 873, 79 Cal.Rptr. 729, 457 P.2d 561), fronted by a parking lot 150 to 280 feet in length and to which the public was openly invited, was not a modest establishment.
6. Food Employees v. Logan Plaza (1968) 391 U.S. 308, 325, 88 S.Ct. 1601, 1612, 20 L.Ed.2d 603 held that states could not constitutionally enforce the decisions of shopping center owners to prohibit union picketers from engaging in free speech activity on the shopping center ground. Logan Plaza was overruled tacitly in Lloyd Corp. v. Tanner, supra, 407 U.S. 551, 562, 92 S.Ct. 2219, 2225, and explicitly in Hudgens v. NLRB, supra, 424 U.S. 507, 96 S.Ct. 1029. Before Pruneyard, California followed Logan Plaza in Diamond v. Bland (1970) 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733 (Diamond I ) and then, after Lloyd, following Lloyd in Diamond II, supra.
7. Appellants contend that because of the government tenants and FPA's receipt of substantial state funds, “the property here is infected [sic ] with broad public uses.” However, government ownership does “not guarantee access to property.” (U.S. Postal Service v. Greenburgh Civic Assns. (1981) 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517.) Adderley v. Florida (1966) 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149, rejected a First Amendment claim of access to a “jail driveway and ․ an adjacent grassy area upon the jail premises” (id. at p. 45, 87 S.Ct. at p. 246) as follows: “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over the jail custodian's objections, because this ‘area chosen for the peaceful civil rights demonstration was not only “reasonable” but also particularly appropriate․’ Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on [citations]. [Fn. omitted.] We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose.” (Id. at pp. at 47–48, 87 S.Ct. at p. 247; quoted with approval by Lloyd Corp. v. Tanner, supra, 407 U.S. 551, 568, 92 S.Ct. 2219, 2229.) If government ownership does not create a public speech forum, then public funding of private property does not either.
8. As stated in People v. Medrano (1978) 78 Cal.App.3d 198, 212, 144 Cal.Rptr. 217, “[t]he free speech claim receives greater weight when the entrant and the owner-invited audience share a relationship engendering a common interest in the message. [Fn. omitted.]” See also Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 256 Cal.Rptr. 194 (injunction against anti-abortion picketing from the public street improper; court noted that regulations on free speech must leave open ample alternative channels of communication, and an alternative does not exist if the speaker's target audience is totally insulated from the speaker's message).
9. In 1972, after Lane was decided, the California Constitution was amended to add a right of privacy to the inalienable rights of individuals set forth in Article 1, section 1. Privacy, for state constitutional purposes, has been defined as “ ‘the right to be left alone.’ ” (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 291, 172 Cal.Rptr. 866, 625 P.2d 779.)
COTTLE, Acting Presiding Justice.
BAMATTRE–MANOUKIAN and GORDON,* JJ., concur.