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Capitola Mall Sued for Restricting Free Expression

Capitola Mall’s Ousting of Protesters Saturday Follows Unlawful Pattern of Rights Abuse
Capitola, CA, November 9th, 2005: As recently as August of this year, Capitola Mall owners, the Macerich Management Company, were sued for unlawfully restricting free expression.

Following a pattern of unlawful restriction of free speech, Capitola Mall owners violated free speech rights of Victoria’s Secret protesters on Saturday.

Contrary to what Capitola Police Captain Todd Mayer claimed in an interview, the National Labor Relations Board reaffirmed the Pruneyard Decision as recently as two months ago.

“I am familiar with the Pruneyard Decision,? said Captain Todd Mayer, Patrol Supervisor of the Capitola Police. “But you have to look at other case law.?

However, the recent decision in August by the National Labor Relations Board is unambiguous. The National Labor Relations Board ruled that the Macerich Company had “unlawfully restricted the content of picket signs, handbills, and other written materials? and “unlawfully threatened union picketers with arrest? at Capitola Mall and at Arden Mall in Sacramento.

Four other cases cited by Captain Mayer were misrepresented as supporting the property owners right to restrict free expression.

While subsequent cases have explored detailed aspects of free speech at shopping malls, they remain staunchly in support of free expression in public spaces and none alter the Pruneyard Decision substantially.

“If the Capitola Mall application process creates an unreasonable barrier to free speech, they may be open to litigation,? said Kristin Matson a participant in the protest.

Questions remain as to where Capitola Police acquired their understanding of complex free speech vs. private property laws, including representative cases. "If [Capitola police] were advised by the owners of the Capitola Mall or their lawyers, it is unsurprising that case law would be represented as coming down on the side of property owners," said a local attorney.

“When the mall replaces Main Street as the center of social and commercial activity, the censorship of free speech has a devastating effect on the core values of freedom and diversity in a free society,? said Matson.

Protesters at Victoria’s Secret in Capitola Mall were attempting to call attention to Victoria’s lesser-known dirty secret, that the company mails out over 395 million catalogs a year -- more than 1million a day -- on paper that comes from virgin timber, much of it from Canada's Great Boreal Forest.

More info about the Pruneyard Decision:

• Analysis of the Pruneyard Decision

• Supreme Court Opinions in the Pruneyard Decision

More info about the Victoria's Dirty Secret campaign:

• Santa Cruz Indymedia article about Capitola Protest

• Victoria’s Dirty Secret Campaign

• Nationwide Reporting of 350+ Protests And Events to Protect Boreal Forest

More info about the recent Macerich Company suit:

• Macerich Management Company and UBCJ, Local 586, UBCJA, AFL–CIO, Aug 27, 2005

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Re: Capitola Mall Sued for Restricting Free Expression

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: 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.


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