If you’re a typical shopper, you just want to shop in peace—when you stroll through the local mall, you expertly weave, dodge, and avoid eye contact with the well-intentioned salespeople pitching their wares as you go about your business. But the state of California has another obstacle for ordinary shoppers and introverts at the mall: a self-styled activist passing out fliers declaring that “men are not owned by women through their bodies!” and inviting them to a 12-point presentation.
This activist, Alex Salazar, wants Majestic Realty, the owner of Citrus Plaza and Mountain Grove, Southern California shopping malls, to allow him to advocate for “men’s eMANcipation” on their property. Salazar feels strongly that men should not pay child support for a child born outside of marriage—in his own words, “men are not legally and financially responsible for supporting a child that a woman chooses to have.” He wants the malls to allow him to wear a sandwich board and pass out fliers promoting his hour-long presentation on defying child support orders, hoping to convince other men to attend his meetings and “join the fight.”
The mall owners denied Salazar’s request based on their general policy prohibiting third-party solicitors and leafletting, regardless of the topic. Salazar then sued the mall for turning down his request to hijack their property for his own agenda.
Salazar’s demand that a private business platform his controversial viewpoint on their own dime violates the First Amendment and their private property rights. But the state of California is forcing Citrus Plaza and Mountain Grove to comply anyway. That’s why the mall owners, with the help of Pacific Legal Foundation, are taking this fight to the U.S. Supreme Court. They are challenging California’s demand and aim to overturn the flawed precedent empowering the state to make this claim in the first place.
The First Amendment protects speech—and the choice not to speak—from government interference. But California has taken that choice away from the mall owners. Relying on a 1980 Supreme Court decision (PruneYard v. Robins), a California appellate court ruled that the shopping mall must allow Salazar’s activities, even if it is bad for business and contrary to the mall’s wishes. The ruling demands that the mall provide a stage and audience for Salazar to proselytize against court ordered financial support of children born to unwed mothers.
Salazar can advocate for his ideas on public or private property, so long as the owner does not object. Here, the owner plainly objects. But California is forcing the mall to provide a platform for controversial speech in the name of “protecting” Salazar’s speech.
But protecting it against what? Salazar has a right to speak, but under the First Amendment, he has no right to force unwilling third parties, such as the mall owners, to subsidize that speech.
The mall’s unwillingness to platform the speech illustrates that it is bad for its business and detrimental to the mall’s interests. The mall is a profit-seeking enterprise, taking its cues from its customers—if customers wanted to be confronted by solicitors, political signature gatherers, and protesters advocating for (or against) the cause of the moment, the mall would voluntarily offer space to advocates as an incentive to draw potential shoppers. But malls know the vast majority of customers view such intrusions as a nuisance at best, and may even avoid a mall to avoid unwelcome confrontations.
California’s reason for treating the mall as a quasi-public space is the social value of communicating ideas in the “public square”—the canonical street-corner soap box. But the rise of the Internet as the modern alternative to the “public square” makes this an outdated concern. Surely Salazar could attract exponentially more attendees for his meetings by advertising online, or even outside the local courthouse dealing in matters of family law (including child support orders).
Theoretical supporters of Salazar could claim that allowing him to speak at the mall isn’t that big a deal because shoppers regularly interact with viewpoints they may disagree with — for example, in environmental, social, and governance (ESG) marketing. But there’s a world of difference between the state forcing a business to platform controversial speech and the same business voluntarily stocking products preferred by some of its customers.
Whereas the “fair-trade” label on your preferred coffee beans adds value for some customers, requiring the mall to platform Salazar is the worst of all worlds. Both the company and consumer want to keep his anti-child-support rhetoric out of the shopping experience, and it’s not clear that there is any real social benefit to anyone — including Salazar, who admits the usual shopper reaction is “a blank stare.” He’s even on the record saying that he has never successfully recruited someone to attend his meetings by leafletting—despite at least seven attempts, during which he spent an estimated 12 hours targeting individuals in shopping centers.
It’s time for the U.S. Supreme Court to step in and overturn California’s absurd and unconstitutional demand. The mall’s petition for certiorari urges the court to take the case and affirm that the First Amendment forbids state-sponsored attempts to compel support for someone else’s speech.
Bridget Conlan is an attorney at Pacific Legal Foundation, which is representing Majestic Realty Co., Redlands Joint Venture LLC and Mountain Grove Partners LLC in the United States Supreme Court.