A California woman is suing a shopping mall for requiring her to pay a $250 fee each time she hands out a Gospel tract.
While malls are privately owned, in California, however, courts have ruled they are areas of public accommodation where free speech is protected. The Pacific Justice Institute, representing Debra Moore, won a nearly identical case a few years ago.
In the previous case, the court ruled the owner, Westfield, illegally imposed rules that “prohibit unplanned classic pure free speech between strangers who mutually agree to converse and who cause no disturbance of the pace or otherwise burden, interfere with, or impose additional risk on the operation or enjoyment of the mall.”
With that as the standard, Pacific Justice sued in Superior Court in Kern County on behalf of Moore, who had been handing out tracts at the Valley Plaza Mall in Bakersfield to people interested in learning more about her Christian faith.
However, mall security officers accused her of “soliciting.” and she was given a retailer application and “told she must submit the application and pay a fee of approximately $250 each time she wanted to hand out a tract.”
Matthew McReynolds, a senior staff attorney for PJI who filed the suit this week, said: “The mall’s position is that free speech is only free when it’s spoken, not written, and when the mall thinks it is ‘pleasant’ speech. Those restrictions are fundamentally incompatible with the California Constitution.”
PJI explained: “Unlike most states, the free speech provision of the California Constitution has been interpreted for decades to extend speech rights to large shopping malls. In 2010, PJI attorneys won the landmark case Snatchko v. Westfield LLC, which vindicated the speech rights of a youth pastor who had been arrested at a Sacramento-area mall for engaging young people in conversations about faith.”
PJI President Brad Dacus said that in America “people should not have to get permission or pay a fee simply for sharing their faith in legally protected areas.”
“In the past three years, we’ve seen an alarming uptick in the number of evangelists being criminally prosecuted or otherwise barred from engaging in the time-honored American tradition of publicly sharing their faith,” he said. “We’re also very concerned about the increasing number of incidents where not even senior citizens like Ms. Moore are being respected in their exercise of constitutional freedoms.”
The court filing explains Moore visits the mall for both shopping and social interaction.
On occasion, she invites those with whom she is in conversation to visit her church. For that purpose, she has small pieces of literature that include the basics of her beliefs and the location of her church.
When confronted by security officers, she was told the fee for handing out a tract was $250, and she would have to provide the legal name of her business, federal tax ID, number of years in business, business address, store locations, price points, revenue, business plan and financial statements.
The filing explains the mall’s code of conduct contains no bans on handing out a piece of literature.
PJI exchanged letters with mall ownership and was told the mall would not “permit anyone to hand out literature without applying and paying a fee in advance.”
“As a result, Moore’s freedom of speech at Valley Plaza Mall has been sharply curtailed,” PJI said. “The mall’s restrictions on speech violate the California Constitution.”
The complaint seeks a declaration that the speech restriction violates the state constitution, injunctions against enforcement of the restrictions and damages.
PJI’s previous mall-speech victory came when then-Associate Justice Tani Cantil-Sakauye rejected the mall’s demands.
“The [mall’s] rules treat all applicants for noncommercial expressive activity the same way, but the rules are not content neutral because they prohibit or restrict speech unrelated to the mall’s interests while permitting speech that is related to the mall’s interest. The rules are content based,” she found.
It was youth pastor Matthew Snatchko who was targeted by a mall in that case.