On February 18, Richard Johnson, a Mendocino County newspaper publisher and Green Party activist, was handcuffed, placed under arrest, and held in the county jail for six hours for the crime of gathering signatures at the Ukiah Walmart. Although his violation was of the trespass law, Walmart officials were candid about their displeasure with the content of the petition, decriminalization of marijuana. Four days later, eight of us were arrested for protesting Walmart’s treatment of Mr. Johnson. We were taken to jail, booked, and released.
Several factors have made confrontations like the one we had at Walmart almost commonplace in today’s California. People seeking to exercise their free speech rights, whether to gather signatures or to rally for a cause, go where the people are. Increasingly, as the town squares of California are diminished, the people are at shopping malls and big box retailers like Target, Costco, Home Depot, and Walmart. A second factor is the proliferation of initiatives--there are simply more people out there gathering signatures for everything under the sun. Our recent state election sported 21 initiatives, each one requiring 700,000 valid signatures to qualify.
The issue of First Amendment protections in California’s new shopping havens was handed down from the bench in the 1979 California Supreme Court case Robins v. Pruneyard. The case involved a group of high school students who had set up a card table to collect signatures in support of the state of Israel. Shopping center management filed an injunction to force them to leave the premises. Before it was over, the case had determined that while retail establishments may adopt “reasonable regulations,” they cannot outlaw political activity on their property. Further, they cannot regulate the content of petitions nor can they draw regulations that are so narrow with respect to “time, place, and manner” as to discourage the full exercise of civil rights under the First Amendment.
Back to Walmart...on March 2, Mendocino County District Attorney Norm Vroman announced that “the alleged acts [of the nine arrestees] do not rise to the level of a criminal offense. Therefore, criminal charges are not merited.”
Vroman rested his decision on Pruneyard, holding that under the California Constitution, “the public has the right to engage in free speech and petitioning on private property when that location has the characteristics of a public forum. If the commercial property becomes a place where citizens congregate, the owner’s property rights must yield to the public’s right to engage in expressive activity.”
This is a critical point. Private property advocates sometimes claim that retail stores have no obligation to allow free speech activities. However, the courts have ruled that since retail stores invite the public in to do business, they compromise certain of these rights. Still, stores like Raley’s have claimed, in trying to get around Pruneyard, that the are not “a place of congregation nor a substitute town square.” Raley’s managers have followed a similar course to Walmart, intermittently placing petitioners under citizen’s arrest.
Vroman went on to state that
...analyzing Walmart’s rules and regulations, it is apparent that they are too narrow as applied to the individuals in question. Limiting someone to a three by four foot space that is approximately 17 feet away from the main entrance is more restrictive than is necessary to promote Walmart’s commercial interest. Furthermore, it appears that Walmart’s motivations are based on the fact that they feel that the subject matter of the petitions is personally offensive. This is the exact type of restriction that the courts have found to be constitutionally defective.
Furthermore, the alleged activities by the individuals concerned do not rise to the level of a criminal offense as defined in the Penal Code. Since Walmart’s property is open to the public, the code sections that apply are limited. The individuals arrested on the second incident were booked under Penal Code section 602. But to be guilty of that section the offender must do more than just trespass. A violation of that section also requires that the purpose of that trespass is to injure, interfere with, or obstruct the conduct of business, or to intimidate those doing business at the location.
Although the law is not more specific as to the type of activity that would be legally offensive, it is clear that it must be more than displaying signs or soliciting signatures. It must be some type of physical interruption or breach of the peace. From the reports that were submitted, it is clear that this is not the situation currently before this office.
So that should have been the end to it. But it wasn’t. Just three days after the DA’s decision was made public, Walmart managers harassed another signature gatherer, ordering him to “get inside the yellow box” designated for free speech activities. When he reminded them of the DA’s decision that this was an overly restrictive rule, two more Walmart employees came outside and began photographing the petitioner.
It was after this incident that many of us decided it was time for our group, dubbed in the local newspapers as the “Walmart 9,” to consider what further actions to take to uphold our rights and create a new precedent at least for Mendocino County if not for the state. In the days immediately after the group arrest on February 21, we had offered to mediate our disagreement. Walmart management refused. Now they had again demonstrated their arrogance by continuing to harass peaceful people in spite of the DA’s crystal-clear position.
Of course, there is something going on here that is larger than our struggle with Ukiah Walmart. The retail industry in California hates the Pruneyard case. They are determined to attack it where it is deemed weak, especially on issues related to “time, place, and manner.” The 1997 case known as Needle Trades gave the industry an opening. In that case, union workers protesting the manufacturer of Guess jeans failed to present sufficient evidence to support their activities, thus ceding to retailers powers beyond those deemed necessary in Pruneyard. For example, some retailers like Walmart use Needle Trades to disallow all free speech activity for certain periods (i.e., Thanksgiving through Christmas) known as “blackouts,” to limit individual petitioners to three consecutive days of activity, and to force petitioners to stand in “designated areas.”
In our case, the fact that none of us were paid signature gatherers is in our favor. Also, Walmart clearly discriminated on the basis of content, telling us that our petition was inimical to the “family values” the chain promotes. It also helps that the local DA says the law is on our side.
When and if we finally come before a judge and jury, who knows how things will turn out. But it’s clear that not standing up for free speech is the final step before losing it and that as always, democracy is not something you have but something you do.
Dan Hamburg is executive director of Voice of the Environment, a northern California nonprofit dedicated to protecting the public from greedy, unprincipled corporations like Walmart.