HORTON PLAZA ASSOCIATES v. PLAYING FOR REAL THEATRE (1986)

These are consolidated appeals of defendants, Playing for Real Theatre and William Phipps (hereafter Defendants) from a temporary restraining order and preliminary injunction preventing them from performing a play expressing a political viewpoint in the shopping center known as Horton Plaza and owned by respondent Horton Plaza Associates (Horton).   The temporary restraining order has been superseded by the preliminary injunction and is no longer in issue, but defendants ask us to consider its validity along with the injunction because important rights of freedom of expression are involved and the nature of a temporary restraining order is to expire after a brief period, evading appellate review.  (See United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 906–907, 122 Cal.Rptr. 877, 537 P.2d 1237.)

 Because the injunction operates as a prior restraint of defendants' expressive conduct and speech (see, e.g., Wilson v. Superior Court (1975) 13 Cal.3d 652, 660, 119 Cal.Rptr. 468, 532 P.2d 116), they are entitled to prompt appellate review (National Socialist Party v. Skokie (1977) 432 U.S. 43, 44, 97 S.Ct. 2205, 2206, 53 L.Ed.2d 96).   In lieu of issuing a writ of supersedeas we have chosen to accelerate the appeals (cf. KGB, Inc. v. Giannoulas (1980) 104 Cal.App.3d 844, 164 Cal.Rptr. 571 [supersedeas] ).

 In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, the California Supreme Court held the California Constitution (art. I, § 2) protects the right to gather signatures at a private shopping center.   The United States Supreme Court had held the First Amendment does not guarantee any rights of expression on private property such as a shopping center (Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131;  Hudgens v. NLRB (1976) 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196);  nevertheless it affirmed the Pruneyard decision, permitting states to balance rights of expression under state constitutions against rights of private property ownership (Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741).   Accordingly, California law protects rights of free expression in shopping centers, subject to reasonable time, place and manner regulations to ensure noninterference with business operations (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at pp. 910–911, 153 Cal.Rptr. 854, 592 P.2d 341).

The issue here is whether the injunction forbidding the performance of defendants' play under the facts presented by this record constitutes a reasonable regulation, or whether, as defendants allege, it is an impermissible restriction of freedom of speech.

THE RECORD

On April 4, 1986, Horton filed its complaint seeking injunctive relief against defendants “arising out of trespass to real property, nuisance, and interference with prospective economic relationship.”   It alleged ownership of the multistory shopping center known as Horton Plaza, occupied by four major tenants and approximately 120 other tenants.   The Center occupies the area of downtown San Diego stretching from Broadway to “G” Street and from First to Fourth Avenues (with certain small non-included areas).   It covers an approximate area of nine square blocks.   The Center (according to the supporting declaration of its manager, Robert T. Dobson) contains approximately 700,000 square feet of leasable area and encompasses approximately 10.6 acres of the main shopping and business district in San Diego.   It has no “center court” area or amphitheater, but only four limited staging areas, none of which exceeds 200 square feet in area.   Individuals or groups desiring to exercise constitutionally-protected rights at Horton Plaza are allowed the use of a “community cart” and two chairs at one of these four specified locations in the Center, allegedly the only areas which can accommodate such activity.

The complaint further alleges on information and belief that beginning April 5, 1986, defendants intend to enter Horton Plaza during business hours and conduct a political play or “skit” in one or more unspecified locations.   Eight or more individuals will be involved.   Defendants will also distribute literature, engage patrons in political discussions, circulate petitions, and otherwise attempt to attract attention to, and sympathy for, their causes and organizations.   Further, defendants intend to create a disturbance at the Center in order to attract media attention and publicize their cause.   Such conduct, it is alleged, will directly and significantly disrupt normal business operations at Horton Plaza, decreasing the rental value of the property and harming the reputation of the Center.   Also, the viewpoint expressed by the play may mistakenly be attributed to the Center;  customers may believe the Center management endorses the activity.   Finally, these anticipated activities will be without Horton's approval and will violate the Center's rules and regulations.

Horton prayed for an injunction restraining the above-described conduct and from any use of Horton's property unless such use adheres to Horton's regulations.

Accompanying the complaint was a request for a temporary restraining order and declaration by Robert M. Gans, counsel for Horton.   Gans alleged a San Diego police detective, Oberlies, said he had learned from an unidentified confidential source that a political street theater group planned a demonstration to occur in the Center about April 5, 1986, protesting warfare in Central America.   According to Oberlies, the group would first demonstrate in the area known as Horton Plaza Park, immediately in front of the Center, to draw public attention, and then would come into the Center for further political demonstrations.   The objective was to create a disturbance within Horton Plaza to attract attention and publicize the cause.   Further, according to the Gans' declaration, Oberlies advised it appeared the group intended to create problems, possibly including physical violence, and then to commence legal action against the owners of the Plaza.

Oberlies would not sign a declaration nor reveal his source of information, according to the Gans' declaration.

The Center manager, Dobson, also filed a declaration describing the Center and incorporating a copy of its Rules and Regulations regarding political expression.   He alleged that persons wanting to exercise constitutional rights at the Center must give 72–hours' notice and fill out a registration form.   He grants or denies such applications without any reference to the subject matter of the activity other than to verify that the activity is not commercial.   He normally responds to these requests within 24 hours.   Such activities are only allowed in one of the four staging areas and are restricted to use of the “cart” and two chairs.   The Plaza has allowed, in fact encouraged, programs of “street performers” in the Center, but these “typically” number no more than one or two at a time.

Dobson also said defendant William Phipps asked permission to perform a play of political expression at the Center with up to eight actors.   Dobson denied the request due to the lack of proper staging areas and related concern over fire regulations and shopping access.   He did approve a request to distribute leaflets.

He expressed a concern that performance of a political play at the Center may cause customers to associate Plaza management with the particular viewpoint expressed.

In addition to the declarations of Gans and Dobson, the request for a temporary restraining order included a copy of the Plaza's Rules and Regulations Relating to Use of Shopping Center Property for Purposes of Political Expression.   These Rules begin by saying the Center is a privately-owned commercial center which has not been dedicated to public uses and “[n]either the center nor the owners acquiesce in the majority opinion of the California Supreme Court in the case of Robins v. Pruneyard.”   However, the Center and its owners say they will “follow the directives of the opinion as we understand them” until “there is a definitive resolution of the issues raised in the opinion by the United States Supreme Court,” and they then proceed to state rules which govern the time, place and manner of politically-related activity in the Center.

The Rules require obtaining a permit for political expression in the Center on a 72–hours' notice.   There must be full disclosure of the identity of the proponents and the topic of the proposed expression.   The following policy concerning permit issuance is stated:

“B. Policy Concerning Issuance of Permits

“(1) Only one permit to any one person or group or organization will be issued per day.

“(2) A permit shall allow the holder to use only the portion of center property expressly designated and specified in the permit.

“(3) The office of the Center manager shall have the power to deny a request for a permit if the manager in good faith believes the proposed Political Expression to be profane, indecent, disturbing, offensive, in poor taste, or otherwise not conducive to the controlled business environment of the shopping center.

“(4) The number of persons who may engage in Political Expression in the Center at the same time shall be determined by the owner.   Such number shall be determined with reference to the space provided in the designated area and the number of separate groups engaged in such activity at the same time.   In no event shall more than two persons from any one group occupy space in the designated area at the same time.

“(5) No permits will be issued between Thanksgiving and December 31st of any calendar year.”

Attorneys for the Center gave notice to defendants' attorney of their application for a temporary restraining order at about 11:45 a.m. on April 4, 1986 (the day the complaint was filed).   The parties appeared before the judge in chambers that same day at 3:30 p.m. and a temporary restraining order was issued.   That order forbade defendants to enter or use any part of the Center for any political activities unless permission were first obtained from the manager of the Center and the activities comported with the Center Rules.   Further, defendants were specifically enjoined from performing a great variety of expressive acts within the Center, including distributing pamphlets or other literature, soliciting signatures except as permitted by the Center, soliciting money, using furniture or other materials or displays without permission, approaching any patrons, causing a disturbance on the premises, hindering business, “performing any dramatization of any acts or events,” or “in any other way impeding, disturbing, or interfering with the commercial activity of the Horton Plaza Shopping Center, ․” Hearing on the request for preliminary injunction was set for April 17, 1986.

Additional declarations were filed before the hearing on the request for a preliminary injunction.   Defendant Phipps filed his declaration saying defendant Playing for Real Theatre wishes to perform a brief skit dramatizing defendants' views on current United States policy in Central America, involving between six and eight performers, performed in a limited space and lasting approximately ten minutes.   Horton Plaza management has denied permission for such a performance under any circumstances.   Further, Phipps said defendants do not desire or intend to cause any disruption, breach of the peace, or physical violence, or otherwise interfere with normal Center operations.   “Violence of any kind is contrary to the entire philosophy of Playing for Real Theatre and all its members.”

Horton submitted the declaration of Karin Lesley Binder, Director of Marketing for the Center.   She is responsible for public relations and promotion of the Center.   She stated this opinion:

“5. In my opinion, Horton Plaza is particularly subject to being detrimentally affected by unregulated political activity occurring within the center.   In this regard, Horton Plaza is, of course, located in downtown San Diego;  in order for us to attract customers, we must overcome the public's perception that a downtown environment may not be their first choice for shopping activities.   In my opinion, a visitor to this downtown shopping center is more sensitive to being subjected to political demonstrations and solicitations than at a competitive suburban shopping mall.   In view of same, my objective at Horton Plaza is to create a relaxed, nonthreatening environment, and to have an atmosphere distinctive from the adjacent downtown areas.   All promotional activity at the center is designed and regulated to not only entertain our customers, but to encourage shopping activity and specifically avoid any interference with customer traffic and customer shopping.   I am particularly concerned that the unregulated activity such as that desired by Defendants would be contrary to those objectives, and substantially interfere with shopping activity at the center.

“6. In connection with the foregoing, and in an effort to encourage return visits by Horton Plaza customers, we have developed a “street entertainment” program which is described in Paragraph 18 of the Declaration of Robert T. Dobson, filed April 4, 1986.   Horton Plaza is the only shopping center in all of Southern California which has this promotional program.   We are very careful to regulate all performers to ensure that they do not disrupt shopping activity.   I join in Robert T. Dobson's concern that the performance of a play, such as that desired by Defendants, would be interpreted by customers of our shopping center as being part of our promotional activities and endorsed by Horton Plaza management.”

Dobson also filed an additional declaration in which he contradicted assertions in the defendants' points and authorities that Horton Plaza is a “public forum.”   Dobson said the park known as “Horton Plaza Park,” adjacent to the Center and not included in it, has been historically used for “soap box orators” and is still available for that use, but the plaza area has not been traditionally so used either before or after construction of the Center.

Finally included in evidence was a copy of the Phipps' request for permission to perform a ten-minute political skit/play reenacting the bombings of El Salvador and another request to leaflet, the latter marked “No other activity is permitted” and approved by Dobson.   With the latter application was a sample leaflet purportedly describing current conditions in El Salvador and United States' policy with respect to the present government of that country, and giving the name and address of the organization San Diego CISPES.

On April 18, 1986, after a hearing, the court issued a preliminary injunction preventing defendants, during pendency of this action, from performing a political play or skit in Horton Plaza.   Further, the court specified the type of expressive conduct which defendants may undertake within the Center.   They may exercise rights of “political petitioning and associated free speech” guaranteed under the California Constitution, to wit, verbal discussions of issues with passers-by, solicitation of petition signatures, and posting of signs pertaining to the issues in the petition, provided they give 72–hours' notice of such activity to the Center management, confine their activity to one of the four staging areas of the Center, and have no more than four individuals conducting such activity at any one time.   The manager may exercise reasonable good faith discretion in determining appropriate dates for such activity not conflicting with other activities.   Defendants may not use any furniture or other equipment without permission except for a placard no greater than 25 inches square.   There shall be no content restrictions upon the proposed activity except that it must be political and not commercial and shall not include verbiage offensive to the Center's customers so as to result in a significant interference with normal business operations.   The manager has discretion to decide what verbiage is offensive.

The order specifically recites the court sustained defendants' objection to the Gans' declaration (submitted originally to obtain the temporary restraining order) and that declaration has not been considered by the court.  (That declaration contained Gans' hearsay statements as to Detective Oberlies' anticipation of violence in the Center.)

CONTENTIONS

Defendants appeal from the temporary restraining order and the preliminary injunction.   They contend the temporary restraining order was issued with neither compelling justification nor a meaningful opportunity to be heard, and is further too broad and lacking in necessary precise standards to pass constitutional muster as a prior restraint of free speech.   As to the preliminary injunction, they say Horton's property interests are not sufficiently compelling to warrant a complete prohibition of defendants' political play.   Also, the injunction is based on and partly incorporates the Plaza Regulations, which defendants say are too broad and lack clear standards for the restriction of rights of free expression.

DISCUSSION

 We examine the legally relevant rules.   Performance of a play, whether political or not, is expressive conduct protected against governmental interference by the First Amendment;  public authorities may only limit such conduct by means of narrowly drawn, reasonable, time, place and manner regulations.  (E.g., Southeastern Promotions Ltd. v. Conrad (1975) 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 [denial of use of municipal theater to perform rock musical “Hair” an unlawful prior restraint];  People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1980) 101 Cal.App.3d 296, 161 Cal.Rptr. 562 [must establish obscenity, in prompt procedures, to justify prior restraint of showing of films];  In re Hoffman (1967) 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353 [invalid restriction of distribution of anti-war leaflets in Los Angeles Union Station;  only narrow time, place and manner regulations would be permissible].)

Here, however, we deal not with governmentally imposed restrictions but with a private property owner's attempt to limit use of his property.   As we have stated, the United States Supreme Court has eschewed protection of expressive conduct upon private property because the First Amendment is a limitation upon government (“Congress shall make no law․”) and state action in such situation is lacking.   Many states, however, have followed California's lead in finding independent state constitutional guarantees of free expression which private property owners must respect, particularly when their property is available for public use.  (See in addition to the Pruneyard decision, supra, the following decisions protecting rights of expression in shopping centers or upon private university campuses:  Alderwood Assoc. v. Wash. Envir. Council (1981) 96 Wash.2d 230, 635 P.2d 108 [signature gathering in shopping center];  Batchelder v. Allied Stores Intern., Inc. (1983) 388 Mass. 83, 445 N.E.2d 590 [political candidate soliciting signatures in shopping mall];  Com. v. Tate (1981) 495 Pa. 158, 432 A.2d 1382 [leaflet distribution at private college];  SHAD Alliance v. Smith Haven Mall (1985) 106 A.D.2d 189, 484 N.Y.S.2d 849 [leafletting in large suburban shopping mall];  State v. Schmid (1980) 84 N.J. 535, 423 A.2d 615 [political literature distribution at Princeton University];  see also the following, which appear to be the only decisions declining to find independent state guarantees:  State v. Felmet (1981) 302 N.C. 173, 273 S.E.2d 708;  Woodland v. Michigan Citizens Lobby (1985) 423 Mich. 188, 378 N.W.2d 337;  Cologne v. Westfarms Associates (1984) 192 Conn. 48, 469 A.2d 1201, see generally, Annot. (1985) 38 A.L.R.4th 1219.)

Our Pruneyard decision took its lead from the affirmatively phrased California constitutional protection of expressive conduct (Cal. Const., art. I, § 2(a)), which says “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.”   This provision, according to the Pruneyard decision, confers affirmative expressive rights upon California citizens which they may exercise upon private property where they have a right to be (as in the case of shopping centers open to the public), subject only to reasonable regulations preventing interference with normal business operations.  (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at pp. 910–911, 153 Cal.Rptr. 854, 592 P.2d 341;  see also Diamond v. Bland (1970) 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733.)   In Pruneyard, petitioners were permitted to set up a cardtable and peacefully solicit signatures for a petition opposing a United Nations resolution against “Zionism,” in a privately-owned 21–acre shopping center.

None of the cases which we have cited above, establishing rights of expressive conduct upon publicly used private property, deal with the precise issue here, performance of a political play.   Most of the cases involve such conduct as leafletting, soliciting signatures and literature distribution.¹  It has been noted that conduct other than pure speech may require less constitutional protection:

“As a person's activities move away from pure speech and into the area of expressive conduct they require less constitutional protection.   As the mode of expression moves from the printed page or from pure speech to the commission of public acts the scope of permissible regulation of such expression increases.”  (Rouse Philadelphia Inc. v. Ad Hoc '78 (Pa.1979) [274 Pa.Super. 54] 417 A.2d 1248, 1249, quoted in Planned Parenthood of Monmouth v. Cannizzaro, supra, [204 N.J.Super. 531] 499 A.2d [535] at p. 541, original italics.)

Case law has developed principles permitting reasonable time, place and manner regulation of demonstrative conduct, such as parading or use of loudspeakers.   (The precedent is summarized in e.g., Dillon v. Municipal Court (1971) 4 Cal.3d 860, 868–870, 94 Cal.Rptr. 777, 484 P.2d 945;  see also Cox v. Louisiana (1965) 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471;  Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221;  Heffron v. Int'l Soc. for Krishna Consc. (1981) 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298.)   Such cases weigh the individual right to freedom of speech and assembly against the public need for security and order;  narrowly limited regulations not based on the content of the ideas to be expressed are valid.  (See Dillon v. Municipal Court, supra, 4 Cal.3d at pp. 869–870, 94 Cal.Rptr. 777, 484 P.2d 945.)   In Clark v. Community for Creative Non-Violence, supra, the court sustained National Park Service regulations prohibiting camping in certain parks, applied to prevent demonstrators from sleeping in Lafayette Park and the Mall in Washington, D.C., to dramatize the plight of the homeless.   The demonstrators were permitted to erect a symbolic tent city but not to sleep in it.   In the Heffron case, supra, members of ISKCON wished to practice their ritual of Sankirtan at a public fair by peripatetic solicitation on the fairgrounds involving distribution and sale of religious literature and solicitation of donations to support the Krishna religion.   The state regulations restricted such activities to a fixed booth on the grounds.   The Supreme Court found this restriction a reasonable regulation of the activity of ISKCON members.

Decisions of the United States Supreme Court concerning First Amendment rights on public property also consider the question whether the involved property is or has been a traditional public forum.  (See, e.g., United States v. Grace (1983) 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 [sidewalks next to Supreme Court building are traditional public forums where expressive conduct cannot be forbidden by overbroad restriction].)   Cases finding certain property not to be the equivalent of public forums include United States Postal Service v. Council of Greenburgh (1981) 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517 [letterbox not a public forum, statute may forbid deposit of unstamped mailable matter];  Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 [no right of candidate for public office to use advertising spaces on public transit system];  Pacific Gas & Elec. Co. v. P.U.C. of California (1986) 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 [PUC may not compel Pacific Gas & Electric to include third party newsletter in its billing envelopes].²

Further, the authorities agree the breadth of the restriction is also relevant;  regulations with no standards, or vague, overbroad standards, are not valid.  (E.g., Com. v. Tate, supra, 432 A.2d 1382;  State v. Schmid, supra, 423 A.2d at p. 632;  U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1171, 201 Cal.Rptr. 837.)   Prior restraints must be as narrowly drawn as possible to protect against the perceived harm without unnecessarily chilling the exercise of protected freedoms.  (E.g., Wilson v. Superior Court, supra, 13 Cal.3d 652, 532 P.2d 116, 13 Cal.3d 652;  United Farm Workers of America v. Superior Court, supra, 14 Cal.3d 902, 122 Cal.Rptr. 877, 537 P.2d 1237.)   As pointed out in the United Farm Workers case, supra:

“When enjoining activities in the sensitive area of First Amendment freedoms, courts must draft temporary restraining orders ‘couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order.’  (Carroll, at p. 183 of 393 U.S. [at p. 352 of 89 S.Ct., at pp. 332–333 of 21 L.Ed.2d];  accord, United Farm Workers Organizing Committee v. Superior Court (1971) 4 Cal.3d 556, 570 [94 Cal.Rptr. 263, 483 P.2d 1215];  In re Berry (1968) supra, 68 Cal.2d 137, 155, 65 Cal.Rptr. 273, 436 P.2d 273].)”  (United Farm Workers of America v. Superior Court, supra, 14 Cal.3d at p. 909, 122 Cal.Rptr. 877, 537 P.2d 1237, quoting Carroll v. Princess Anne (1968) 393 U.S. 175, 183, 89 S.Ct. 347, 352, 21 L.Ed.2d 325.)

 Finally, we note the relevant principles regarding review of a preliminary injunction.   In deciding whether to issue such an injunction the trial court must balance the relative harms to the parties of issuance versus non-issuance of an injunction, appraising the probability of success of the party for whose benefit the injunction is to be granted, and comparing the harm to the proponent if the injunction is not issued with the damage to the opponent if it does issue.  (See Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, 219 Cal.Rptr. 467, 707 P.2d 840;  IT Corp. v. Imperial County (1983) 35 Cal.3d 63, 69–70, 196 Cal.Rptr. 715, 672 P.2d 121;  U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory, supra, 154 Cal.App.3d at p. 1160, 201 Cal.Rptr. 837.)

 Further, where First Amendment or expressive rights are involved, the appellate court independently reviews the record, rather than following the substantial evidence standard of review (see Franklin v. Leland Stan. Junior University (1985) 172 Cal.App.3d 322, 330–331, 172 Cal.App.3d 322), and where the injunction operates as a restraint of expressive conduct, a heavy burden falls on the party seeking such an injunction to establish justification.   (Wilson v. Superior Court, supra, 13 Cal.3d 652, 119 Cal.Rptr. 468, 532 P.2d 116;  KGB, Inc. v. Giannoulas, supra, 104 Cal.App.3d at p. 847, 164 Cal.Rptr. 511;  see generally, for federal analysis of prior restraints, Near v. Minnesota (1931) 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357;  Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1.)   As stated in Wilson v. Superior Court, supra, “any prior restraint on expression bears a heavy presumption against its constitutional validity.”  (Id., 13 Cal.3d at p. 657, 119 Cal.Rptr. 468, 532 P.2d 116.)

In considering the relative harms to the parties here, these factors are relevant:  the size and design of the center and its normal and intended uses;  the availability of alternative, inexpensive and readily accessible forums for the desired activity;  the extent to which the particular shopping center has displaced or replaced former gathering places or historical forums traditionally used for similar expressive conduct;  the extent of existing governmental involvement with the private property.   The cases cited above developing the rights of free expression upon private property consider these factors, as do the many pertinent articles.  (See, e.g., Wachs, Access to Private Fora and State Constitutions:  A Proposed Speech and Property Analysis (1982) 46 Alb.L.Rev. 1501;  Simon, Independent but Inadequate:  State Constitutions and Protection of Freedom of Expression (1985) 33 U.Kan.L.Rev. 305;  Note, Post-Pruneyard Access to Michigan Shopping Centers:  The “Malling” of Constitutional Rights (1983) 30 Wayne L.Rev. 93;  Developments in the Law, the Interpretation of State Constitutional Rights (1982) 95 Harv.L.Rev. 1324;  Notes, Private Abridgement of Speech and the State Constitutions (1980) 90 Yale L.J. 165;  Barnett, A Private Mall Becomes a Public Hall (1980) 26 Loyola L.Rev. 739.)

For example, in the Shad Alliance case from New York, supra, the court looked to the fact the shopping center there involved was a large 97–acre mall with a central amphitheater which had been frequently made available for various community presentations and gatherings.   The mall had been expressly designed not only as a commercial center but also as a gathering place and center of events.   Accordingly, the desired expressive conduct, distribution of political leaflets, was found to be protected conduct, embraced within the purpose of the mall's design and use.  (Shad Alliance v. Smith Haven Mall, supra, 484 N.Y.S.2d 849.)   Similarly, the decision in Schmid, supra, looked to the extensive interface of government and Princeton University, as well as the avowed purpose of the university to disseminate knowledge and ideas, and concluded Princeton must allow distribution of political literature on the campus.  (State v. Schmid, supra, 423 A.2d at pp. 619–621, 629.)   The decision in Batchelder v. Allied Stores Intern., Inc., supra, involved an 84–acre mall, the largest in Massachusetts.  (Batchelder v. Allied Stores Intern., Inc., supra, 445 N.E.2d 590.)

Many of the decisions and commentators stress the importance of considering to what extent the shopping center has replaced previously available forums of political expression, as well as the related consideration of the availability of alternative fora.   One commentator refers to shopping centers generally as the “new downtowns” which now serve “as the public trading area for much of metropolitan America,” and which are now returning to the downtown areas “from whose demise [such shopping centers] originally profited.”  (Note, 90 Yale L.J., supra, at p. 168, & fn. 16, p. 168.)   The Pruneyard opinion also documents the growing importance of suburban shopping centers which are eclipsing central business districts.  (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d at p. 907, 153 Cal.Rptr. 854, 592 P.2d 341.)

In light of the above principles, we consider the validity of the trial court orders here.

 First, the temporary restraining order has been superseded by the preliminary injunction and is no longer in effect.   Defendants say we should nevertheless examine its validity because it presents important public issues which are apt to recur and which evade review because of the necessarily brief life of such an order.   They cite the decisions in United Farm Workers, supra, and Carroll v. Princess Anne, supra, which review temporary restraining orders affecting expressive conduct.

These cases differ from that here, however, because they involved continuing course of invalid conduct.   For example, the United Farm Workers case dealt with a practice of issuing repeated, invalid temporary restraints.   Here, no such repetitive practice is alleged.

Further, the issues regarding the extent of permissible regulation of expressive conduct upon private property may be considered as readily in reviewing the preliminary injunction as the temporary order.

Accordingly, we elect to dismiss as moot the appeal from the temporary restraining order.

 We turn to the preliminary injunction.   It specifically orders defendants not to perform a political play or skit in the Horton Plaza Shopping Center during pendency of the action.   The court said:

“IT IS HEREBY ORDERED that during the pendency of this action, defendants PLAYING FOR REAL THEATRE and WILLIAM PHIPPS, and each of them, and their agents, representatives, and all persons and entities acting in concert or participating with them, shall be and they are hereby enjoined and restrained from engaging in, committing or performing a political play or skit in the Horton Plaza Shopping Center, said shopping center being depicted on Exhibit “A” hereto.”

The court further states defendants may exercise their rights of political petitioning and associated free speech guaranteed by the California Constitution within the shopping center, specifically, to discuss issues with passers-by, to solicit signatures for petitions, to post signs regarding the issues in the petition, and to have up to four individuals conducting any such activity at any one time, at one of the four staging locations within the Center.   The injunction requires defendants to obtain a permit on 72–hours' notice, as prescribed by the Horton Rules and Regulations, and says there shall be no content restrictions on such activity except no commercial advertising shall be included and there shall be no verbiage which “in the good faith, reasonable discretion of the center Manager, would be so offensive to the center's customers ․ as to result in a significant interference with the normal business operations of the shopping center;  ․”

For the following reasons, we believe this injunction is not an unreasonable restriction of defendants' expressive rights within the shopping center.   First, the court order does not forbid all political expression within the Center;  defendants' rights as articulated in the Pruneyard decision to solicit signatures and present their ideas are not restricted.   Second, banning the performance of plays of unknown scope, requiring an undisclosed staging area, does not appear ipso facto unreasonable when the involved shopping center has no center staging area and no performing area larger than 200 square feet.   Such a center does not compare with the large malls, centered by amphitheaters or spacious performance arenas, which were involved in the out-of-state cases cited above and in the Pruneyard case.   Defendants have presented no evidence showing how their eight-actor play can conveniently be performed in a 200–square foot area while leaving sufficient peripheral space for unimpeded movement of shoppers and bystanders.   Third, defendants have not shown that Horton has displaced traditional available forums in the area nor have they demonstrated lack of alternative available forums;  the map of the Center which was before the trial court shows the existence of the immediately adjacent Horton Plaza Park, and defendants do not explain why they cannot perform their play there with equal effectiveness.   Fourth, although defendants have made conclusory allegations regarding governmental contribution and participation in the building of Horton Plaza, they have not shown how such governmental activity has caused the Center's purposes to become more public than those of any other retail shopping center.  (Cf. the Schmid decision, supra, re Princeton University.)

Horton Plaza differs from the shopping centers involved in the above-cited cases principally because it is a downtown rather than a suburban shopping center.   Decisions such as Pruneyard discuss how a suburban shopping center tends to become the only place in a large community where people can be found gathering together on foot;  accordingly, such a center is indeed the most conveniently available forum for the dissemination of ideas and solicitation of signatures.   Horton, however, lies in the heart of a downtown metropolitan business district where extensive pedestrian traffic occurs on the streets surrounding the center as well as within it.   Under these circumstances, the Center owner cannot be said to have a monopoly of pedestrian traffic in the area such as would justify extensive interference with his right to manage his property.

We conclude the trial court has not abused its discretion in weighing the parties' relative rights and opting to issue a preliminary injunction pending the trial of this matter.   Its order is affirmed.

Judgment granting preliminary injunction affirmed;  appeal from order granting temporary restraining order dismissed.

I respectfully dissent.   Horton Plaza as a forum¹ for the expression of political views is not the issue on this appeal.   We deal here with a preliminary injunction, a prior restraint on freedom of expression.

Prior restraints carry a heavy presumption of invalidity.   This injunction is based on double and triple hearsay statements made by an unidentified confidential informant to a police officer, who passed them on to the Plaza manager and his lawyer.   Chicken Little and Henny Penny are alive and well!   The informant claimed some people proposed to perform a political play at the Plaza.   The court believed it.   This “sky is falling” evidence is wholly insufficient to muzzle debate on public issues, the lifeblood of a free society.

I

The facts are simple.   On March 12, 1986, William Phipps on behalf of Playing for Real Theatre (Theatre) filled out, signed and filed with Horton Plaza a Political Expression Permit Request—Registration Form describing a proposed activity:

“We would like to perform a short (10 minute) political skit/play reenacting the bombings in El Salvador—involving leafletting as part of skit.”

On the form is the following:

“NUMBER OF PERSONS TO BE ON SITE:  6–8 people [¶] A) NAME:  (PERSON IN CHARGE) William Phipps—contact person”

That same day, March 12, 1986, Phipps on behalf of Theatre filled out, signed and filed with Horton Plaza a similar form stating:

“NATURE OF POLITICAL ACTIVITY (ATTACH COPY):  leafletting w/factual information on the bombings in El Salvador [No other activity is permitted]”

“․

“NUMBER OF PERSONS TO BE ON SITE:  8 [¶] A) NAME:  (PERSON IN CHARGE) none—it's a collective effort [¶] B) NAME:  contact person:  William Phipps”

March 17, 1986, Horton Plaza manager Robert Dobson denied the first request and approved the second, adding to the paragraph entitled “NATURE OF POLITICAL ACTIVITY” the phrase in brackets, “No other activity is permitted.”

II

Neither Phipps nor the Theatre put on the play or distributed leaflets.   They did not reapply for the denied permit and did not start any legal proceedings to compel Horton Plaza to allow performance of the play.   Instead, Horton Plaza sued Phipps, the Theatre and San Diego Cispes.   The complaint alleges four causes of action—injunction for trespass to real property, injunction for nuisance, injunction for interference with prospective business and declaratory relief.   The complaint is deemed not verified for failure to follow Code of Civil Procedure 2 section 446 requirements.   If considered to be verified, the form used prohibits its allegations from consideration.³

Section 527, subdivision (a) authorizes issuance of a preliminary injunction on affidavits.  (6 Witkin, Cal.Procedure (3d ed. 1985) Provisional Remedies, § 307, pp. 260–261.)   In the absence of a verified complaint, declarations may be considered.  (Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150, 115 Cal.Rptr. 879.)

I return to the complaint and then to an evidentiary review of the two declarations filed in support of the temporary restraining order together with two filed at the hearing on the preliminary injunction.

After reciting the physical layout of Horton Plaza and its policies with respect to the use of Horton Plaza by individuals or groups desiring to exercise constitutionally protected rights, the complaint alleges:

“12.  Plaintiff is informed and believes and thereon alleges that beginning on or about April 5, 1986, and continuing thereafter for an indefinite period of time, defendants, and each of them, intend to enter Horton Plaza during business hours and situate themselves in one or more unspecified locations, for the purpose of conducting a political play or ‘skit’, involving as many as eight or more individuals, and further intend to distribute literature, engage patrons in political discussions, circulate petitions, and otherwise conduct themselves with intent to attract attention to, and sympathy for, their causes and organizations.   Plaintiff is further informed and believes that defendants intend to create a disturbance at the center for the purpose of attracting media attention, thereby publicizing their cause.”

Horton Plaza alleges the defendants will do these things in disregard of existing procedures and with the intent to annoy tenants and customers.

Horton Plaza's lawyer, Robert M. Gans, submitted his declaration in support of the temporary restraining order and preliminary injunction.   He stated both corporate counsel Michelle A. Perfili and Dobson told him that Detective Les Oberlies notified them his department had learned a demonstration protesting warfare in Central America was scheduled for April 5 outside Horton Plaza and then inside the Plaza.   Gans then talked with Oberlies who confirmed the report of the planned demonstration.

“Detective Les Oberlies further stated that he was informed that the group(s)' objective, once inside the Horton Plaza Shopping Center, is to create a disturbance within Horton Plaza, for the purpose of attracting further attention to themselves, thereby publicizing their cause.   Detective Les Oberlies further advised that it appeared that the group(s) has the intention of creating problems within the center, possibly including physical violence.   Detective Les Oberlies further stated that it was the group(s)' intent to thereafter commence legal action against the owners of Horton Plaza and the City of San Diego.  (Italics added.)

Dobson's declaration in support of the temporary restraining order and the preliminary injunction shows he is the manager of Horton Plaza and he denied Theatre's first request:

“due to the lack of proper staging areas and related concern over fire regulations and shopping access at the center;  we were particularly concerned in view of Mr. Phipps['] specification that there would be as many as eight (8) people conducting the play at the site in question.”

Dobson then stated:

“We remain willing and able to allow Defendants access to our community cart and chairs, and to conduct activities at an appropriate location and time, consistent with the regulations attached hereto as Exhibit ‘A’ and the Pruneyard decision.[4]  However, we simply cannot permit the ‘political skits/play with eight (8) people (referred to on Exhibit ‘D’ hereto) due to the large area which would be encompassed and the inevitable interference with customer traffic, the resulting diminution of sales activity which, in my opinion, is certain to occur, the resulting violation of fire regulations, and increased danger to those who work and shop in Horton Plaza.”

A temporary restraining order issued and the application for preliminary injunction was heard April 18, 1986.

The court sustained objections to admission of a second Gans declaration, considered the Gans and Dobson declarations earlier filed by Horton Plaza in support of the temporary restraining orders, and received declarations by Horton Plaza marketing director Karin Lesley Binder and Phipps.

Binder averred “the unregulated activity such as that desired by Defendants would be contrary” to policies requiring promotional activities to entertain customers, to encourage shopping and avoid interference with shoppers.   She opined:

“In my opinion, unregulated political activity, such as that which is desired by Defendants, will discourage Horton Plaza customers from extending their visit to the center, and discourage Horton Plaza customers from returning to the center.”

Phipps' declaration in opposition stated the Theatre desired for some time to perform a brief skit at Horton Plaza dramatizing views on United States policy in Central America.   The skit would involve six to eight performers, require limited space and would last ten minutes.   He stated:

“Playing for Real Theatre still desires and intends to perform at Horton Plaza at the earliest time possible.   We do not desire or intend to cause a disruption, breach the peace, engage in physical violence, or otherwise interfere with the normal operations of Horton Plaza.   Violence of any kind is contrary to the entire philosophy of Playing for Real Theatre and all its members.   We have no desire to cause a confrontation with Horton Plaza management.   Instead, we only desire to engage in an entirely peaceful expression of our political views.”

Following the hearing, the court enjoined Theatre and Phipps “from engaging in, committing or performing a political play or skit in the Horton Plaza Shopping Center․”  The court further restrained the defendants in the exercise of other First Amendment activities in Horton Plaza by requiring them to submit an application to Horton Plaza for each day any such activities were to occur and to abide by terms laid out in the court order which track in part Horton Plaza rules and regulations.   Significantly, the court order limited political comment verbiage to that deemed inoffensive to the Plaza manager:

“The proposed activity shall not be limited as to content, excepting only that such activity shall be restricted to the dissemination of political information and opinion, shall not include any commercial advertising, and shall not include verbiage which, in the good faith, reasonable discretion of the center Manager, would be so offensive to the center's customers so as to result in a significant interference with the normal business operations of the shopping center;  additionally, no such activity shall state or imply that plaintiff endorses the views expressed by defendants.”  (Italics added.)

The evidence does not support the injunction.   The injunction is an impermissible prior restraint on protected First Amendment expression.

III

The court relied on Gans' and Dobson's declarations reciting Detective Oberlies' recollections of charges made by unnamed confidential informants concerning proposals for a demonstration in Horton Park, a public place, and removal of the demonstration to Horton Plaza.   Phipps' declaration the Theatre intends to perform a skit in Horton Plaza does not threaten a demonstration or a trespass or a violation of law.   The intent to perform is wholly consistent with an intent to reapply for a permit.   Binder does not claim any knowledge of Theatre's proposal.

When, as here, a plaintiff seeks to enjoin free speech, broad public policies generally counsel against issuance of an injunction.   An injunction prohibiting free speech is an exercise of drastic power (Carroll v. Princess Anne (1968) 393 U.S. 175, 183, 89 S.Ct. 347, 352, 21 L.Ed.2d 325), a prior restraint of free expression (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116;  Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1).   The “chief purpose” of the First Amendment guarantee of free speech was “to prevent previous restraints.”  (Near v. Minnesota (1931) 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357.)   It is a theory “deeply etched in our law:  a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.”  (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 559, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448;  Vance v. Universal Amusement Co., Inc. (1980) 445 U.S. 308, 316, fn. 13, 100 S.Ct. 1156, 1161 n. 13, 63 L.Ed.2d 413.)

To obtain relief, Horton Plaza must dispel the “heavy presumption” against imposition of a prior restraint.  (Freedman v. Maryland (1965) 380 U.S. 51, 57, 85 S.Ct. 734, 738, 13 L.Ed.2d 649;  Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584;  Wilson v. Superior Court, supra, 13 Cal.3d 652 at p. 657, 119 Cal.Rptr. 468, 532 P.2d 116.)

Prior restraints require compelling justification.  Perrine v. Municipal Court (1971) 5 Cal.3d 656, 664, 97 Cal.Rptr. 320, 488 P.2d 648, holds a prior restraint by license denial is justified only upon a showing of a “clear and present danger of a serious, substantive evil.”  Wilson v. Superior Court, supra, 13 Cal.3d 652 at p. 660, 119 Cal.Rptr. 320, 488 P.2d 648, points out “ ‘the substantive evil must be extremely serious and the degree of imminence extremely high’ ” (quoting Bridges v. California (1941) 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192) before a prior restraint by injunction may issue.   Justice Brennan's concurring opinion in New York Times Co. v. United States (1971) 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822, indicates “the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result” (at pp. 725–726, 91 S.Ct. at p. 2147), and further notes that a restraint of expression would be justified only upon proof that the expression “must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea ․” (at pp. 726–727, 91 S.Ct. at pp. 2147–2148).

Horton Plaza does not make a compelling showing of such serious and imminent danger necessary to justify a prior restraint.   The only evidence of any real threat justifying resort to the drastic remedy of a preliminary injunction prohibiting free speech is contained in Gans' declaration.   This declaration recounts Gans' conversations with Oberlies who recounted his conversations with an unnamed informer.   Oberlies refused to make a declaration under penalty of perjury confirming under oath his conversations with the informer.

The claims that defendants intend to “create a disturbance within Horton Plaza ․ possibly including physical violence” are inadmissible hearsay and cannot be considered.   When those unfounded allegations are disregarded, the only showing remotely made by Horton Plaza indicates the defendants desire to perform a short, ten-minute skit dramatizing their views on American foreign policy.

Defendants have come forward denying any intention to disrupt the normal operations of Horton Plaza and describing their philosophical aversion to violence of any kind.   Those representations offset any conjectural or speculative claims by Horton Plaza to support its injunction application.

Horton Plaza does not cite any criminal law which defendants threaten to violate.   There is none.  Penal Code section 602, subdivision (j) only prohibits entering or remaining on private property open to the public “with the intention of interfering with, obstructing, or injuring any lawful business” on the property.  Penal Code section 602, subdivision (n) only prohibits refusal to leave property “not open to the general public.”   San Diego Municipal Code section 52.80.01, prohibiting use of “privately operated business premises which are open to the general public for any purpose which is contrary to the functions or services provided thereon without the consent of the owner,” specifically exempts “peaceful political activities.”

IV

In addition to a blanket prohibition of presentation of “a political play or skit” with or without a permit, the court proceeded to adjudicate the claim for declaratory relief set out in the fourth cause of action in the complaint.

“26. Plaintiff desires a declaration of its constitutional rights and its rights and duties with respect to the public access rules and regulations pertaining to Horton Plaza (a copy of which is attached hereto as Exhibit ‘C’ and incorporated herein).

“27. Such a declaration is necessary and proper at this time under the circumstances in order that plaintiff may ascertain its right to regulate access to Horton Plaza according to reasonable time, place and manner guidelines.”

This adjudication results from the restraints imposed by the court on the expression by defendants of First Amendment rights other than the presentation of a political play or skit.   These restraints track Horton Plaza rules and regulations.   The injunction thus constitutes a declaration of constitutionality of the rules, an issue not addressed in the briefs or arguments below, and not supported by the evidence.

Phipps and Theatre now find themselves subject to contempt charges for failure to abide by Horton Plaza rules and regulations as interpreted by the Plaza manager.   While others may walk about the Plaza preaching the end of the world, Phipps and his Theatre cohorts would face imprisonment for contempt of the court order.

V

One further point.   The majority dismisses the appeal from the temporary restraining order as moot.   That order has the same defects noted in my discussion on issuance of the preliminary injunction.   I would allow the appeal and reverse the order.  (United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 909–914, 537 P.2d 1237, 14 Cal.3d 902.)

VI

Finally, this case comes to us in a plain wrapper.   The content is sterile.   Phipps and his Theatre cohorts did not protest the denial of the permit to put on the play and they did not leaflet as allowed by issuance of the second permit.   Hearing bumps in the night,⁵ Horton Plaza seeks to exorcise phantoms of its imagination.   Our review should await an actual controversy.

Freedom of expression issues are best determined in the context of a march on Selma, a neo-Nazi parade in Skokie, a leafletting in the Pruneyard Shopping Center.   First Amendment rights should not be declared in the absence of a shuttered theatre or a banned book.   We do not live in a cloistered world.

I would reverse the judgment.

FOOTNOTES

1.   One case involved anti-abortion picketing, and there, because of the violence of the picketers, the property owner was permitted to eject them.  (See Planned Parenthood of Monmouth v. Cannizzaro (1985) 204 N.J.Super. 531, 499 A.2d 535.)

2.   The last cited decision, Pacific Gas & Elec. Co. v. P.U.C. of California also espouses the proposition a private party may not be compelled to promulgate the viewpoint of another party.

1.   The majority opinion assumes the Plaza is to be characterized as private property.   I take judicial notice (Evid.Code, § 452, subds. (g) & (h)) of the acquisition of the site and other downtown properties through city purchases and condemnation to eliminate blight and reinvigorate the area with hotels, offices and residential structures.   Public financing for Horton Plaza in the form of land subsidies, public improvements and construction grants totals some $40 million.  (Horton Plaza Reaps Praises at 1st Birthday, Los Angeles Times, San Diego Edition, Aug. 3, 1986, part II.)

FN2. All statutory references are to the Code of Civil Procedure unless otherwise specified..  FN2. All statutory references are to the Code of Civil Procedure unless otherwise specified.

3.   Michelle A. Perfili identifies herself as “Corporate Counsel” for Ernest W. Hahn, Inc., a corporation (Hahn), said to be the general partner for EWH 1979 Development Company, L.P., a corporation (EWH), in turn said to be the general partner for plaintiff Horton Plaza Associates.   Perfili is not an officer of Hahn or EWH or a party or an attorney for or employee of Horton Plaza Associates.  (See § 446.)   Even if Perfili was authorized to sign the verification, language is that employed by an attorney for a party.   A pleading so verified shall not be considered as an affidavit or declaration establishing the facts (§ 446).

4.   Interestingly, Horton Plaza makes no bones of its distaste for the Supreme Court's decision in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, affirmed in Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741.   In the preface to its rules and regulations, Horton Plaza states:  “Neither the Center nor the owners acquiesce in the majority opinion of the California Supreme Court in the case of Robins v. Pruneyard.   However, the Center and its owners shall follow the directives of the opinion as we understand them to be until there is a definitive resolution of the issues raised in the opinion by the United States Supreme Court.”

5.    “From ghoulies and ghosties and long-leggety beasties“And things that go bump in the night“Good Lord, deliver us!” (Cornish prayer.)

KREMER, Presiding Justice.

LEWIS, J., concurs.