In short, you are allowed to express yourself IN or Outside of the mall. The mall may ask you to fill out an application which will have some restrictions. However, they can only be related to time, place, and manner.

As of August, Capitola Mall's free expression application itself had several errors. They tried to prohibit anything that would interfere with the "commercial interests of the mall or it's tenants." They prohibited signs. They required one to presubmit the materials you planned to leaflet or flier. They restricted certain content on signs and leaflets. They restricted anyone from protesting or picketing outside during peak times (read: holiday).

What you have a right to do:
* picket or protest in or outside of the mall
* You can specifically name the mall or tenants of the mall.
* You can leaflet and flier. You can petition.
* You can talk to people

What they are allowed to do:
* Require you to fill out an application
* restrict signs (for safety reasons), though this is a gray area. A California court said, No. The NLAB said, Yes
* confine your expressive activity to a place where it is safe, e.g., people have room to pass
* restrict you from certain peak times (but only if there are safety concerns)

What they are NOT allowed to do:
* Require you to presubmit material
* Regulate the content of your material
* Forbid you to enter the mall
* Threaten you with arrest if you fail to comply with the erroneous parts of their guidelines

The owners of Capitola Mall were sued not more than 3 months ago (and lost) for overly restrictive free expression requirements.

As with anything dealing with police, knowing the law is very very important. Their knowledge of the law is limited. You may regularly come up against one or two laws, while they have to deal constantly with thousands of laws. Generally, police do not know the minutia of every law and can benefit from your understanding of it.

If you plan to protest at the Capitola Mall or at any mall: Print this email. Print a summary of the Pruneyard Decision. Print this recent National Labor Councel judgement: www.nlrb.gov/nlrb/shared_files/decisions/345/345-34.htm Print the following four legal summaries since they were cited by Captain Mayer. Have everything organized and ready and be prepared to politely and firmly stand your ground, ask for a ranking captain or patrol supervisor, and discuss with him or her the finer points of the law, offering him or her copies of the materials you brought.

This is part of the long history of protest and dissent. Often, as in the free speech fight of Spokane in the early 1900's (which was won, by the way, through direct action), before you can address the issue at hand, you have to fight for the free speech right to talk about it.

Additional Applicable Cases Sited by Captain Todd Mayer of the Capitola Police

• H-CHH Associates v. Citizens for Representative Government, the court ruled that malls requiring groups seeking to use their space for public free speech activities to purchase expensive insurance first, created an unlawful barrier against free expression

• Westside Sane/Freeze v. Earnest W. Hahn Inc. (1990), the court ruled that the Pruneyard Decision is not limited to activity connected with enrollment of signatures on petitions, and rejected claims that allowing leafletting and expression unconnected with signature gathering accomplishes an unconstitutional taking of their property.

• Savage v. Trammell Crow (1990), The owner of a shopping center may impose reasonable limits on the time, place and manner of such activity. the owner or operator of a shopping center may not draw distinctions between "political" and "religious" speech.

• Glendale Associates 31-CA-22759 (2001) – decision by the National labor relations board that malls cannot maintain and enforce a rule prohibiting handbillers from identifying by name any tenant or company in the mall. However, the mall may maintain a rule that requires handbillers furnish in advance the names of all prospective handbillers.