Metropolitan News-Enterprise


Friday, August 31, 2001


Page 1


Tenants Don’t Have Constitutional Right to Leaflet in Apartment Complex, State High Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A residential landlord’s rule prohibiting tenants from circulating a newsletter or other unsolicited materials within the complex doesn’t violate the state Constitution’s free speech clause, the state Supreme Court ruled yesterday.

By a 4-3 majority, the high court affirmed a First District Court of Appeal ruling that the state Constitution’s “liberty of speech” clause cannot be applied to Golden Gateway Center, a 1,254-unit apartment complex in San Francisco, because the premises are not open to the public.

The case was closely watched by various interests concerned as to how the court might expand upon its pronouncement in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899. The court held that there was a state constitutional right to free expression on the grounds of a large, privately owned shopping mall, so long as business wasn’t disrupted.

The court based its decision on Art. I, Sec. 2(a) of the state Constitution, which provides:

“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.”

The court decided Pruneyard against the backdrop of U.S. Supreme Court decisions holding that the decisions of a private shopping center owner to ban certain activities aren’t state action and thus are not subject to First Amendment scrutiny. Earlier U.S. and California Supreme Court rulings had treated such actions as state action when the property was equivalent to a traditional public forum.

The Pruneyard court never addressed the state-action issue, leading to arguments in subsequent cases as to whether California has dispensed with the state action requirement, or merely applies it differently than the U.S. high court has.

The Golden Gateway Tenants’ Association elicited support from the ACLU, the AFL-CIO, and from advertising and marketing industry groups for its position that the landlord should be held to the same standard as the shopping center owner in Pruneyard and barred from imposing unreasonable restrictions on the ability of tenants to communicate with each other.

The landlord’s amici included the Pacific Legal Foundation, the California Business Properties Association, the International Council of Shopping Centers and the California Apartment Association.

The state-action disagreement featured prominently when the case was argued in June. But yesterday’s ruling left the issue unresolved because of a three-way split among the justices.

Justices Janice Rogers Brown, Marvin Baxter, and Ming Chin concluded that the state action requirement remains intact, and that Golden Gateway Center isn’t a state actor because its premises aren’t open to the public. The history of the state provision, Brown wrote for the three, suggests “that the framers of California’s free speech clause intended to protect against governmental—and not private—encroachments.”

Chief Justice Ronald M. George agreed with the three that the exclusion of the public distinguishes the apartment complex from a shopping mall. That conclusion, he said, is enough to uphold the Court of Appeal.

Resolution of the state action question, he said, should be left for another day.

Justices Kathryn M. Werdegar and Joyce L. Kennard, joined by Court of Appeal Presiding Justice Joan Dempsey Klein of this district’s Div. Three, dissented, arguing that there is no state action requirement under Art. I, Sec. 2(a).

“In providing that all Californians ‘may freely speak, write and publish’ their sentiments, the framers of the state free speech clause drew no distinction, among those who might seek to obstruct such activities, between state and private actors,” Werdegar argued.  “They specified instead, in plain language, a right of free speech that runs against both-and protects against interference by either.”

Klein sat by assignment in place of Justice Stanley Mosk, recused for unstated reasons before the case was argued. Mosk died two weeks after the argument.

Glenn P. Zwang, the San Francisco attorney representing the landlord, called the decision “a victory for the privacy rights of these tenants.” Golden Gateway Center has insisted that it instituted the no-distribution policy to protect tenants from unwanted solicitors and pamphleteers.

Tenants’ association lawyer Robert DeVries, unsurprisingly, saw the matter differently.

“Californians need no longer travel to Cuba or China if they want to get thrown in jail for leafleting their neighbors,” DeVries told the MetNews. He said he took some comfort, however, from George’s opinion.

The chief justice, urging “an incrementalist approach,” said the ruling should not be read as giving landlords carte blanche to restrict tenants’ political activities. A ban on political discussion among neighbors in the hallways or placing a campaign poster in the window of a tenants’ own apartment, or on other “core” political speech, might still be deemed a violation of Art. I, Sec. 2(a), George said.

Brown, in the plurality opinion, said tenants may still seek relief through the political process. DeVries said the Golden Gateway residents may try to do just that, possibly lobbying for passage of an ordinance by the generally pro-tenant San Francisco Board of Supervisors.

Passing a state law would be a good deal more difficult, he acknowledged.

The case is Golden Gateway Center v. Golden Gateway Tenants Association, 01 S.O.S. 4443.


Copyright 2001, Metropolitan News Company