I have found much confusion by property managers relating to any requirement to allow picketers, protesters or the handing out of leaflets in shopping centers in California. While both the United States and California Constitutions guarantee freedom of speech, that right is not an unlimited right nor does it necessarily give anyone access to or the right to picket, hand out fliers, circulating petitions, distributing pamphlets or protest in every and all shopping centers.
Current California law focuses on the size of the shopping center and where the center may "functionally step into the shoes of a municipality or exercise municipal functions of power." The US Supreme Court in upholding a California Supreme court decision, held that large shopping centers have essentially replaced public spaces that have traditionally been used for the purpose of public protest.
The cases however, do not draw a fine line and complete guidance on what centers are considered large and which ones are not. This determination must be made on a case by case basis and in consideration of all factors. Furthermore, even if those instances in which a shopping center is considered large enough to protect freedom of speech rights, the centers are allowed to enforce reasonable restrictions, particular when the expressive activity is unrelated to the commercial purpose of the center. Finally, it should be noted that this posting relates only to shopping centers located in California.
Special recognition is given to Sean W. Southard and Kecia R. Felton for their article, "Private shopping Malls – The "Not-So-Private" Private Property," published in the California Real Property Journal.