The California Court of Appeal recently affirmed a retail owner's right to limit expressive activity to areas designated in a written policy. The decision highlights the value of time, place, and manner policies to commercial owners and demonstrates critical practices for handling expressive activity.

Donahue Schriber Realty Group v. Nu Creation Outreach

On January 6, the Fifth Appellate District published its decision in Donahue Schriber Realty Group v. Nu Creation Outreach (see the full decision here). In Nu Creation, the defendant -- an organization running youth centers and pantries around Fresno -- entered the Fig Garden Village shopping center seeking donations near store entrances. Solicitation was prohibited by the center's written policy on expressive activity; permitted activity was limited to designated areas away from the front of stores. The owner relied on the latter, requesting that the Court limit Nu Creation's activities to these areas.

Nu Creation's representatives were asked to leave and refused; the police declined to take action. The owner received an injunction limiting Nu Creation's activities to the designated areas in its policy, which was affirmed. The right to conduct expressive activity in shopping centers remains protected in California (see, e.g., Fashion Valley Mall v. National Labor Relations Board (2007) 42 Cal.4th 850), but Nu Creation supports commercial owners' efforts to control such activities and highlights advisable practices for owners and managers.

Nu Creation followed Ralphs Grocery Co. v. United Food and Commercial Workers (2012) 55 Cal.4th 1083, confirming that the areas directly in front of store entrances are not a public forum for expression; speech in such areas can be limited on a content-neutral basis. As the Court held, "the sidewalk and apron areas are not designed or furnished in a way that induces shoppers to congregate . . .; they are designed only to facilitate customers' entrance to and exit from the stores." Ralphs Grocery held that the Moscone Act (Labor Code sections 1138.1 et seq.) protected the right to conduct non-disruptive labor activities in those areas, an issue not present in the Nu Creation case.

In Nu Creation, it was critical that the owner had issued a policy prohibiting solicitation and limiting expressive activity to designated areas. The Court repeatedly noted the availability of these areas in support of the owner's position. The injunction relied on these areas as the proper location for expressive activity. The Court affirmed the lower court's factual findings based on the owner's evidence, including a copy of the center's policy, aerial views of the areas in which the offending solicitation occurred, and a declaration outlining the specific harms caused by the disruption of patrons' store access. 

Tips for Retail Owners

1. Promulgate a content-neutral Time, Place, and Manner (TPM) Policy. Nu Creation relied heavily on the center's existing policy, which prohibited solicitation of all kinds and limited expressive activity to designated areas. A pre-existing, content-neutral policy governing expression, consistently and neutrally applied, is a critical tool for the landlord and persuasive evidence. Valid TPM rules also may support damages for protests that are disruptive. (See our prior alert discussing a recent Ninth Circuit decision upholding an owner's right to seek damages for a disruptive protest.) 
2. Document offending activity. The issuance of an injunction is fact intensive. Nu Creation focuses frequently on the trial court's weighing of such facts. An owner should closely document activities which violate its TPM policy, to demonstrate the disruption caused, any damage, and the reasons why the location selected by the participants is inappropriate. 
3. Document harm caused. An injunction also requires "irreparable harm." In Nu Creation, the owner submitted detailed declarations regarding the effect on shoppers' behavior when access to stores is blocked. A retail owner faced with a disruptive protest, or one which blocks access, should detail the specific ways in which the center is harmed. Written complaints from shoppers, video recordings, and even expert testimony regarding shoppers' behavior can all be critical evidence.