extends and reinforces a line of cases from the state’s supreme court and other
appellate courts affirming the California constitution’s broader protection for
speech—one which, unlike the federal First Amendment, forbids censorship by
shopping mall proprietors as well as government agencies. In this state, if private enterprise
recreates a multi-merchant environment projecting a Main Street ambiance within
its walls, inviting patrons to stroll, relax and linger as they might on a
downtown city sidewalk, then it may no more act to control what the patrons may
say or hear than might city officials themselves. Reasonable rules on the time, place and manner of speech can
be enforced to prevent congestion or disturbances of the peace, for example,
but not a ban on discussing certain topics, or (as was the case in the
Roseville Galleria) a ban on discussing any topic but shopping. The court found that this
grotesquely totalitarian gag failed to meet even the most relaxed legal
standard for justifying speech curbs.
Westfield‟s Rules burden substantially more speech than is necessary to further its legitimate safety and convenience interests. The Rules prohibit strangers from consensually engaging in peaceful spontaneous political or religious discussions even if they do not: converse loudly, attract a crowd, block any ingress/egress to the mall, its tenants or their activities, distribute any literature, hold any signs or placards, request signatures for any petition, solicit any contributions, or compromise any fire or other safety precautions. In other words, the Rules prohibit unplanned classic pure free speech between strangers who mutually agree to converse and who cause no disturbance of the peace or otherwise burden, interfere with, or impose additional risk on the operation or enjoyment of the mall.
Moreover, by prohibiting or restricting all speech between strangers on topics that are not related to the activities of the mall, its tenants or their sponsored activities, the Rules not only prohibit strangers from consensually engaging in peaceful political or religious discussions as we have described, they also prohibit even casual conversation between teenagers who go to the mall to meet, socialize, and talk with other teenagers. Spur-of-the-moment conversations between strangers who go to the mall to exercise in the common areas are banned. The Rules forbid strangers to converse in order to while away the time as their spouses shop. Under the language of the Rules, strangers could not choose to engage in impromptu chit-chat while they stand in a check-out line in a common area.
interesting aspect of the decision is its author, Associate Justice Tani
Cantil-Sakauye of the Third District Court of Appeal. Governor Schwarzenegger recently nominated her to replace
Ronald George to head the state supreme court as Chief Justice of
California. For those who care
about free speech protection, it is reassuring to think that George’s high
level of solicitude for that right would be upheld by his successor.
most striking—and discouraging— element of the case is the repression that led
to it. Public declarations of
religious adherence get increasingly less respect from the powers that be in
California, be they governmental or commercial. The Roseville Galleria case is reminiscent of a conflict
down the Central Valley in Modesto, where in mid-2008 a Christian lay preacher
of the fire-and-brimstone school of proselytizing, Kevin Borden, was ousted
from a downtown block-long plaza that had been rented to a theater for its
Saturday night programs. His loud
(but not mechanically amplified) jeremiads were considered not only a deterrent
to theater patrons but a nuisance to nearby merchants and open-air restaurant
patrons dining within fenced-off portions of sidewalk. Borden filed a federal court lawsuit
against the city, arguing that its interests in privatizing a streetscape for
revenue could not trump citizens’ rights peaceably—although perhaps
annoyingly—to speak in a classic public forum. The city promptly settled, implicitly agreeing that it could
not in effect enforce a speech-free street zone on behalf of commerce.
Roseville and Modesto episodes are reminders that business interests, normally
thought of as socially conservative, will not hesitate to banish religious
expression—and seek official backup in doing so—when they think it might
alienate customers. Given business
priorities overall, that is perhaps unsurprising.
But government has no such priorities, and no such excuses. And yet its increasingly tin ear for the legitimacy of religious views in the “marketplace of ideas,” ranging from insensitivity to outright hostility, can be sobering, even depressing. Items:
- The City of Oakland, enforcing an ordinance that has been upheld by a federal district court judge, arrested, prosecuted and jailed Walter Hoye, a Baptist pastor, for peaceably handing out anti-abortion literature outside an abortion clinic, thus violating the ordinance’s eight-foot stay-away bubble zone around clinic visitors. Hoye carried a sign that read, "Jesus loves you and your baby. Let us help you!" As women approached the door, he asked them, "May I talk to you about alternatives to the clinic?"
- A Merced elementary school forced a sixth grader to stop wearing a t-shirt that, without harrowing language or images, opposed abortion; the school district has just settled the parent’s legal challenge rather than face it in federal court.
- San Diego County officials withdrew a cease-and-desist order issued to a pastor who held a small Bible study in his home, apologizing for intrusive questions about the meetings. For five years the pastor had hosted the sessions for about fifteen people. When a neighbor’s visitor filed a complaint about parking overflow, county officials questioned the pastor’s wife about the nature of the meetings, asking whether participants said “Amen” or “Praise the Lord.”
- UCLA, responding to media pressure, reversed an official’s decision and agreed to allow a graduating student, Christina Popa, to thank Jesus in her personal statement. Popa said she was told by a faculty adviser, who had been selected to read aloud students' personal statements at the department's commencement, that she would instead read the reference to "my Lord and Savior Jesus Christ" as simply "God."
- Yuba Community College settled a lawsuit brought on behalf of a student, ending a campus policy that required students to obtain a permit to exercise "free speech" during two allotted hours per week. Ryan Dozier had been threatened with arrest and expulsion if he continued sharing the gospel on campus between classes.
- Riverside County jury prosecuted two anti-abortion activists on charges of disturbing the peace and obstructing a peace officer in a November 2007 incident. Joey Cox, bothers Jason and James Conrad, and five other members of an anti-abortion group visited Chaffey College to peaceably hold signs and hand out pro-life literature. All eight of the visitors, including their signs and literature tables, were confined to a space too small to contain them. Cox said that when he went to the campus police station to ask who issued this restriction, he was escorted behind locked doors, shoved against a wall, handcuffed, and searched by three officers. The Conrad brothers were taken to trial, but acquitted by the jury.
- In a relatively little-noticed unpublished opinion in 2007, the U.S. Ninth Circuit Court of Appeals upheld a district court ruling that Oakland officials were entitled to threaten a group of Christian employees with termination if they insisted on using a lunchroom bulletin board to post the following notice in response to a posted announcement about the formation of a gay and lesbian association: “Preserve Our Workplace with Integrity. Good News Employee Associations is a forum for people of Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family values. If you would like to be a part of preserving integrity in the Workplace call Regina Rederford @xxx-xxxx or Robin Christy @xxx-xxxx.”
- Just three weeks after that decision was quietly filed, the U.S. Supreme Court set aside, without a hearing, an earlier Ninth Circuit decision upholding the right of a high school in Poway to punish student Tyler Harper for a far more confrontational response to perceived gay activism. As summarized by supreme court reporter Tony Mauro, “Harper was suspended by school officials for wearing a T-shirt to school in 2004 with the messages 'I will not accept what God has condemned,' and ‘Homosexuality is shameful. Romans 1:27.’ He wore the shirt on the school district’s ‘Day of Silence,’ meant to encourage tolerance of gays. Students were allowed to wear T-shirts conveying pro-gay messages. School officials, claiming that Harper’s ‘negative’ message could be disruptive, suspended him after he refused to take off the shirt.”
The point is not that Christians or
other religious advocates are correct or even highly representative in calling
abortion or homosexuality immoral; the evidence seems to show public opinion
trending well away from these convictions. The point is that in our system anyone has the right to
think and say anything is immoral, no matter whom it offends, without fear of
governmental sanction or legal liability.
The same goes for speech urging a particular set of beliefs or way of
life as the best, or exclusive, path to worthiness.
Freedom of religion is not only co-equal
in linkage with freedom of speech and press under the First Amendment, it is its more hard-earned
core. The repression of speech and
press remembered and dreaded by our constitutional founders tended to boil down
to the silencing of one or two men (pamphleteers and printers) at a time on
behalf of one man or woman—the monarch.
For the victims this censorship could be painful, even fatal, but
incurring such punishment was easily avoidable in a society with few private
orators and writers. In contrast, the elevation of one religion to official
status, or the persecution of other creeds, tended to marginalize, terrorize or
even annihilate people by the thousands, or tens of thousands, and there was no
way to avoid this scourge but by denying who you were. It was the recurrent plague of European
history, and the virus survives.
This is the lesson forgotten, or never learned, by those we see today seeking to use government either to exalt and arm religious belief with official muscle—or to dismiss and disable it altogether from playing its part in keeping conscience, decency and charity alive in our unpretty world.