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Center for Bio-Ethical Reform, Inc. v. The Irvine Company, LLC

California Court of Appeals, Fourth District, Third Division

July 2, 2019

CENTER FOR BIO-ETHICAL REFORM, INC., et al., Plaintiffs and Appellants,
THE IRVINE COMPANY, LLC, Defendant and Respondent.

          Appeal from a judgment of the Superior Court of Orange County No. 30-2015-00786580, Randall J. Sherman, Judge. Affirmed in part, reversed in part, and remanded with directions.

          American Freedom Law Center, Robert J. Muise and David Yerushalmi for Plaintiffs and Appellants.

          Bewley, Lassleben & Miller and Ernie Zachary Park for Defendant and Respondent.


          THOMPSON, J.

         In this case we consider whether certain restrictions applicable to noncommercial speech and expressive activities at two large outdoor retail centers owned by defendant and respondent The Irvine Company, LLC (Defendant) are constitutional under the free speech protections established in article I, section 2 of the California Constitution. The trial court concluded some of the challenged restrictions were unconstitutional and enjoined their enforcement. But it upheld restrictions on (1) “grisly or gruesome displays, ” (2) the locations in which speech and expressive conduct may occur, and (3) the use of body-worn cameras while engaging in such activities.

         We hold there is no constitutional deficiency in the latter two restrictions, and the trial court did not err in denying the statutory damages requested by plaintiffs and appellants Center for Bio-Ethical Reform, Inc., and Gregg Cunningham (collectively, Plaintiffs) pursuant to Civil Code section 52.1. The ban on grisly or gruesome displays is a different matter. It is a content-based restriction that does not survive strict scrutiny review. So, we reverse the portion of the judgment finding the restriction on grisly or gruesome displays constitutional, and we remand to the trial court with directions to enter an amended judgment declaring it unconstitutional and enjoining its enforcement.


         Defendant owns various retail centers in California, including the Fashion Island Shopping Center (Fashion Island), in the City of Newport Beach, and the Irvine Spectrum Center (Irvine Spectrum), in the City of Irvine (collectively, the Centers). Both draw a large number of visitors each year, with the former visited by more than 13 million people annually and the latter by more than 15 million annually.

         Plaintiffs, self-proclaimed anti-abortion activists, wished to engage in certain picketing activity at the Centers. They believed the parent companies of some of the stores in the Centers “permit[] business entities under [their] corporate control to donate money to Planned Parenthood, [an] abortion provider[, ]” and, thus, they desired “to conduct boycott picketing in close proximity to [them.]”

         Plaintiffs assured Defendant they would conduct their activity in a courteous and peaceful manner, without hindering customer entrance into, and exit from, the stores. In addition to verbal communication, Plaintiffs said they would use professionally designed, printed and fabricated picket signs. The signs would display images, titled as follows: “Living 7 week human embryo moments before abortion”; or “Dead 8 week human embryo moments after abortion.”

         Defendant gave Plaintiffs its “Rules for Non-Commercial Expressive Activities” at the Centers. Defendant explained, “rules aside, [it was] prepared to accommodate [Plaintiffs]” subject to certain conditions, which included the following: (1) Defendant would “work with [Plaintiffs] to find a suitable location for [them] in visual proximity of the store[s] in question...”; (2) Defendant would “provide a table and two chairs for [Plaintiffs]”; and (3) in exchange for these accommodations, Plaintiffs “would agree not to have posters or other signage depicting [their desired] photographs (or comparable ones).” With respect to the latter, Defendant further stated it “would have no objection to [the] images being available at [Plaintiffs'] table as long as they were visible only if patrons came to the table.”

         Plaintiffs took exception to many of Defendant's rules, including a prohibition on grisly or gruesome pictures or displays, and they disagreed with the conditions on which Defendant premised its accommodation of their proposed activity. They refused to stand behind a table, stating they had “a right to approach patrons who... don't come to information tables[, ]” and they rejected Defendant's prohibition on displaying large signs with their desired images.

         After meeting with Defendant's representatives, Plaintiffs offered and requested approval of an alternative image for their signage display. The alternative image was a quick response code (QR code) which, upon being scanned using smartphone technology, would play for the viewer what Plaintiffs described as a “horrifying abortion video.”

         Defendant dubbed the QR code image “equally problematic” because, “it... [would] invite [its] young patrons (who are quite ‘tech savvy') to go find the[] videos.” Defendant indicated it would not agree to any terms other than those it suggested in correspondence at the outset of this dispute.

         Plaintiffs sued alleging Defendant's rules and actions violated their free speech rights guaranteed by Article I, section 2 of the California Constitution. They alleged the ban on grisly or gruesome depictions was an unconstitutional content-based restriction, and the rule restricting expressive activity to a 100 square foot area was unconstitutional because it unreasonably precluded them and others from reaching their target audiences. The complaint sought declaratory and injunctive relief, as well as statutory damages pursuant to Civil Code section 52.1.

         During the pendency of the litigation, Defendant revised its noncommercial speech activity rules twice. The first revisions included an increase in the size and number of designated areas within which such activity could occur. The second revisions included an increase in the maximum number of people allowed at one time in each designated area. But the general prohibition on “grisly or gruesome displays” remained through both revisions.

         Although Plaintiffs filed a first amended complaint challenging the first revised rules, they did not do so with respect to the second revised rules. The first amended complaint also challenged Defendant's refusal to allow Plaintiffs to wear “body cameras” while engaging in their desired activities-a desire raised by Plaintiffs for the first time after they filed their original complaint.

         Following written briefing and a trial at which both parties presented evidence, the trial court ruled partially in favor of Plaintiffs and partially in favor of Defendant. The court found the ban on “grisly and gruesome displays” was an unconstitutional content-based restriction, as applied to the “Living 7 week human embryo moments before abortion” sign and the QR code sign.

         However, citing H-CHH Associates v. Citizens for Representative Government (1987) 193 Cal.App.3d 1193 (H-CHH), the trial court found the ban on grisly and gruesome displays was a constitutional content-based restriction, as applied to the “Dead 8 week human embryo moments after abortion” sign. The trial court also found Defendant's designation of limited areas for expressive activity was constitutional. Regarding the proposed use of body cameras, it found Plaintiffs “do not have a constitutional right under Article I, § 2 of the California Constitution to videotape patrons of the [c]enters to whom [they] are expressing their opinions.” Lastly, it denied Plaintiffs' claim for statutory damages under Civil Code section 52.1.


         Plaintiffs contend the trial court erred by: (A) concluding the prohibition on “grisly or gruesome” imagery is constitutional on its face and as applied to their post-abortion image; (B) finding the designated free speech area restrictions are constitutional; (C) upholding Defendant's proscription on the use of body cameras by Plaintiffs while engaging in their desired activities; and (D) denying Plaintiffs' claim for statutory damages under Civil Code section 52.1. We will discuss each contention in turn, but we begin with an overview of the applicable free speech analytical framework.

         A. Free speech under the California Constitution

         “Article I, section 2, subdivision (a) of the California Constitution declares: ‘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.' [Forty] years ago, in Robins v. Pruneyard Shopping Center [(1979)] 23 Cal.3d 899, 910 (Pruneyard), [the California Supreme Court] held that this provision of our state Constitution grants broader rights to free expression than does the First Amendment to the United States Constitution by holding that a [privately owned] shopping mall is a public forum in which persons may exercise their right to free speech under the California Constitution. [The Court] stated that a shopping center ‘to which the public is invited can provide an essential and invaluable forum for exercising [free speech] rights.' [Citation.] [It] noted that in many cities the public areas of the shopping mall are replacing the streets and sidewalks of the central business district, which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' [Citation.] Because of the ‘growing importance of the shopping center [, ]... to prohibit expressive activity in the centers would impinge on constitutional rights beyond speech rights,' particularly the right to petition for redress of grievances. [Citation.] Accordingly, [Pruneyard] “held that the California Constitution ‘protect[s] speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.' [Citation.]” (Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 857-858 (Fashion Valley).)

         When faced with a constitutional challenge to a restriction on speech activity occurring in a Pruneyard public forum, we must first determine whether the speech activity is protected by the California Constitution. Like its federal counterpart, the California Constitution does not extend to every form of speech or expressive activity. (Brown v. Entertainment Merchants Assn. (2011) 564 U.S. 786, 791 (Brown); Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1283 (Larson).) Rather, there are “‘well-defined and narrowly limited classes of speech'” which are entirely unprotected and, thus, may be restricted or prohibited without raising a constitutional problem. (Brown, at p. 791; see Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 513 (Spiritual), disapproved of on other grounds as stated in Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 968.) Those categories are obscenity, fighting words, defamation, and speech intended, and likely, to incite imminent lawless action. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469 (Stevens); Larson, supra, 192 Cal.App.4th at p. 1283-1284.)

         Assuming the speech activity does not fall within one of the unprotected categories, the next analytical step is to determine the level of scrutiny applicable to the challenged restriction. This requires determining whether the restriction is “content-based” or “content-neutral.” (Fashion Valley, supra, 42 Cal.4th at p. 865.) “‘As a general rule, laws that by their terms distinguish favored speech from disfavored speech... are content-based. [Citations.]'” (Snatchko v. Westfield, LLC (2010) 187 Cal.App.4th 469, 481-482 (Snatchko); see Reed v. Town of Gilbert (2015) ___ U.S. ___ [135 S.Ct. 2218, 2227, 192 L.Ed.2d 236] (Reed).) Those that cannot be “‘“justified without reference to the content of the regulated speech, ”' or that were adopted by the government ‘because of disagreement with the message [the speech] conveys, '” are also considered content-based. (Reed, at p. 2227.) “‘By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content-neutral.' [Citations.]” (Snatchko, at pp. 481-482; see also Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 293.)

         Content-based restrictions are “presumptively invalid” and subject to strict scrutiny. (R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382 (R.A.V); see also Reed, supra, 135 S.Ct. at p. 2226-2227.)[1] To be upheld under strict scrutiny, a restriction must be necessary to serve a compelling government interest and narrowly drawn to achieve that end. (Reed, supra, 135 S.Ct. at p. 2227; Fashion Valley, supra, 42 Cal.4th at p. 869.) “Narrowly drawn” in such context means it is the “least restrictive means of achieving [the] compelling... interest.” (McCullen v. Coakley (2014) 573 U.S. 464, 478 (McCullen).) This is an extremely ...

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