California Political Solicitation

Since I'm canvassing, and I have the police called on me pretty regularly, I decided that I should actually know what the law is when I'm out there getting into the most polite, shit-eating conversations I can with the police and management, while still not doing what they want.

Turns our that the law is a lot more complex than what we've been led to believe, at least in our vague employee verbal culture (Ott'd have a field day—maybe I should write a thesis on that some time) at the office, where the sense is generally distilled down to "If it's a shared parking lot, there's nothing they can do."

This also explains why we don't ever canvass Targets.

A quick google for "california political solicitation law" brought up the Target page on their policy. It certainly sheds a lot more light on what the Redondo Whole Foods manager was on about, claiming that a "recent decision" made this all illegal and how she was going to get us all locked up.

What she was referring to was (likely) the California Supreme Court decision of Albertson's v. Young 107 Cal. App. 4th 106 (2003)(pdf), in which it was found that Albertson's had the right to prohibit petitioners from setting up a table and collecting petitions.

A little context here: In a 1980 decision, Robins v. Pruneyard Shopping Center, the California Supreme Court found that California's state constitution gives not only the same protections of free speech as the federal constitution, but also an affirmative right to free speech that is more expansive. The case revolved around a group of high school students who were protesting against a proposed UN resolution condemning Zionism. In a broad finding, the California court found persuasive the argument that because of the increased suburbanization of California culture, supermarkets were taking the place of the public square, thus infringing on property owners' rights to control the content of the speech promulgated thereon… Ugh. That just reads like third-rate legalize. Basically, they ruled that subject to reasonable time, place and manner restrictions, people could exercise their rights to expression in "quasi-public" places.

It was a bold ruling, and both liberal and populist. Which is part of why the California courts have spent the last 30 years chipping away at it. In Trader Joe's Co. v. Progressive Campaigns, Inc. (1999)(pdf), petitioners were banned from a stand-alone Trader Joe's in Santa Rosa; similar outcomes resulted from Costco Companies, Inc. v. Gallant 96 Cal. App. 4th 740 (2002) and the Albertson's case. In all, the court found that a lack of things like coffee shops and areas where customers were invited to linger or congregate placed the stores firmly outside the free speech protections.

Granted, the property owners were greatly aided by the behavior of the canvassers. If the store managers are to be believed, the canvassers not only hassled people outside, but also went into the stores to continue petitioning, and even got into fights while they were in there. But, conversely, because I frequently hear similar stories from grocery store owners, without a lot of proof I tend to assume they're apocryphal. Given that a fair portion of my job is shooting the shit with folks who stop, I've got a pretty good ear for what truth sounds like and what's a convenient, half-remembered story that's simply what you tell someone when you have neither the time nor the inclination to explore an issue fully. Don't shit a shitter, as my Papa Fred used to say.

It's also worth noting that many of the decisions cite prior restrictions on free speech enacted to keep things like violent or disturbing anti-abortion rallies from happening. There's something keenly ironic in noting that when the Planned Parenthood canvassers are run off, it's at least in part because of the laws enacted to keep Planned Parenthood clinics open and operating.

Where does that leave us? Well, in reading through the decisions, it's worth noting that the stores were excellent in picking test cases—the petitioners behaved badly and the stores themselves were able, likely due to good counsel and the inclination of judges to rule in favor of property rights, to get fairly minimizing readings on their businesses. That and a frankly more conservative court has ended up with Pruneyard all but overruled, and more than a few calling to have an explicit ruling doing so.

However, it does appear that the canvassers made their points remarkably poorly, unable to answer questions of fact which the court gave them, instead relying on things like mothers testifying to the good character of their sons and expansive, novel interpretations. They seemed to do a poor job arguing that the notions of public squares have largely become obsolete—no doubt in part due to the fact that much of the public would rather not be engaged with their fellow citizens, a point made repeatedly in the latest Harper's. An emphasis on modern ennui and how that by disallowing political discussions by virtue of a lack of political discussions does seem to beg the question—these are not public spaces because politics is already banned, but that doesn't support the argument that these should not be public spaces. Further, over the last decade, grocery stores have explicitly enlarged their business model to encourage behavior that they explicitly denied prior—the decisions noted that their "convenience" character was at least somewhat based on not having places to linger, nor "coffeeshops or entertainment." That's simply not true of many modern supermarkets, of which many have at least a Starbucks and a set of benches outside as an eating area. A well argued case could, at the very least, expand the time, place and manner restrictions, though the best remedy would likely be legislative, and in California, the grocery lobby is so huge that I'm not very hopeful. They've been able to crush nearly every labor fight in recent memory.

Back to us: So, if a business is able to ban canvassers, how does it do so? Well, it has to enjoin a canvassing group through a preliminary injunction against its canvassing, a civil action. At which point, and hopefully with smarter legal counsel than in prior cases, a canvassing group should be able to countersue and at the very least get the time, place and manner restrictions declared unreasonable. But it's important to note that this is civil law, and that the actions take place between the two corporate entities—those of the business that runs the canvass and the business where the shoppers are. So, while they can ask us to leave, we don't really have to—their remedy is to sue the company we work for.

Further, our—or at least my—technique should leave me in a more defensible position. I only canvass people on their way out, and if they disagree, I tell them to have a nice day. It's hard to construe that as harassment nor as damaging to the business model, and given that they have to prove that the specific company I work for is responsible for damages to their business… Eh. It's a gray area, at least so far as I can tell (though I hasten to add that I'm not an attorney and not giving anyone else any legal advice here). It's simply far too much of a hassle to deal with it, and one of the few areas that is explicitly protected is direct criticism of the store itself, which means that if a store did pursue banning canvassers in a way that harassed or injured them, the canvassers would be within their rights to picket the store and hand out literature about it.

One of the few regular impediments that I deal with is when the business calls the police. They come, sometimes ask me to leave, and I tell them that I have to have a direct order to leave. Sometimes, they'll call the city attorney and ask about what we're doing. It is explicitly political—we are funding a grassroots campaign for EQCA, at least as far as I know. I'll probably look more into that later. But frankly, the understanding of the law that the police have is just as blinkered as that of the store managers or the canvassers themselves, except in one important regard, and that's that nothing we're doing is criminal.

Robert C. Phillips, the deputy D.A. for San Diego, writes about it under the title"Who You Gonna Call? and both views the issue more expansively than the courts appear to, but also concludes that in the vast majority of cases, the police officer should do nothing, in large part because there are no applicable statutes. Of course, canvassers will leave if given an order, and police can enforce a civil injunction, but aside from that… Well, welcome to the ambiguity and ambivalence of public/private life in the 21st century.

I'll end this with one more note, and that's this: Because business owners only ever hear from folks that disagree with the canvassers, they don't realize that we really are supported by the majority of folks that we see. That's why we go to the places that we do. If you like us, or don't mind us, or would like to keep the world a little bit more politically aware and active, or even just have a post-modern view of space and delocalization, tell the managers you like having us there and thank them for the canvassers. It'll make our lives easier and will work to undermine the negative perception that a lot of business management has of us.