thereby impeding police ability to come to Planned Parenthood's aid. Colby Supp. Decl., para. 9.
Whether or not plaintiff's claims under Section 1985(3) are supported by state involvement on the facts in this case, violation of the right to travel is a sufficient and independent basis for reliance on that Section.
Viewing the evidence as a whole, Planned Parenthood has established a likelihood of success on the merits of its Section 1985(3) claim, particularly based on deprivation of the right to travel. At the minimum, plaintiff has shown that there are "serious questions going to the merits" of the dispute. As elaborated below, the balance of hardships tips sharply in plaintiff's favor.
Plaintiff also asserts a claim for trespass. In addition, it alleges as a separate tort the blocking of ingress and egress. That blocking is not a tort under California law, but it is subsumed within the claim for trespass.
Trespass law is complex in California because the California Supreme Court has held that the California Constitution accords a higher level of free speech protection than does the First Amendment of the federal Constitution. See Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 908-09, 153 Cal. Rptr. 854, 859, 592 P.2d 341 (1979), aff'd, 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980).
Plaintiff's trespass claim is a bit too broad. Planned Parenthood has a straightforward trespass claim as to defendants' alleged obstruction of access to the clinic. However, plaintiff asserts that the picketers' mere presence on the private walkway in front of the Westlake Shopping Center and on the parking areas in front of and behind the Center, automatically constitutes trespass. This is not the case. The California Supreme Court has held that private shopping malls are public forums in which protestors are entitled to exercise peacefully their right to free speech. Id.; In re Lane, 71 Cal. 2d 872, 79 Cal. Rptr. 729, 457 P.2d 561 (1969). Although technically privately owned, these areas have been opened up to the public in that tenants' customers are allowed to use them. Thus defendants' mere presence on the walkway and parking areas is insufficient grounds to assert a trespass claim.
The key word, however, is "peaceful." Where protestors disrupt the private owner's operation of his business and interfere with the rights of others, courts are entitled to impose reasonable content-neutral "time, place, and manner" restrictions on their conduct under both the First Amendment and the California Constitution. Grayned v. City of Rockford, 408 U.S. 104, 115-16, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972); Portland Feminist Women's Health Center v. Advocates for Life, Inc., 859 F.2d 681, 685-86 (9th Cir. 1988); Robins, 23 Cal. 3d at 910-11, 153 Cal. Rptr. at 860, 592 P.2d 341; Chico Feminist Women's Health Center v. Scully, 208 Cal. App. 3d 230, 244, 256 Cal. Rptr. 194, 201-02 (1989). The injunction granted in this case is content-neutral. The only arguably content-based restriction it contains is a bar on threats of physical touching. It does not bar defendants' protesting, but controls it so as to balance the rights of both sides. Because California law protects defendants' right to free speech in private shopping centers, the injunction does not bar defendants' right to use the walkway and parking areas per se, but creates a "free zone" which defendants may not enter. As it so happens, this zone, which gives Planned Parenthood and its patients some breathing space, extends over the walkway in front of the clinic and into part of the parking areas.
The balance of the hardships tips sharply in Planned Parenthood's favor, notwithstanding defendants' claim to the contrary. The ability of the clinic to function on Saturdays is continually disrupted by the protests; women enter the clinic extremely distraught; and many women seeking abortions are unable to go through with them or are forced to reschedule because of defendants' activities. It is true that these women are not entitled to be insulated from defendants' message, i.e.. that abortion is immoral, but the manner in which defendants convey this message is unacceptable.
The hardship placed on defendants by the Preliminary Injunction is minimal because it is narrowly tailored and does not unduly restrict defendants' first amendment rights.
It should be noted that the Court itself has actually inspected the areas shown on the diagram attached to the Preliminary Injunction and that this was done after all parties declared they had no objection to the Court doing so. It should also be noted that this case has been scheduled for an early trial, viz. on August 6, 1991.
In light of all the foregoing, plaintiff's motion for a Preliminary Injunction has been granted as today ordered.