Lenrich Associates v. Heyda , 264 Or. 122 ( 1972 )

McALLISTER, J.

Plaintiff is the owner of a shopping center on the east side of Portland known as “Mall 205.” Defendants are members of a religious organization known as the International Society of Krishna Consciousness. On a number of occasions defendants, without plaintiff’s permission, engaged in various activities in Mall 205, including chanting, marching and offering for sale a magazine about their religion. On isolated occasions the defendants also played a guitar and a makeshift drum and burned and sold incense. Plaintiff sought an injunction to prevent defendants from engaging in all those activities on plaintiff’s property. The trial court decreed that defendants must be allowed to enter the common areas of the mall for the purpose of communicating ideas, to discuss the tenets and nature of their religion and to distribute and sell their magazines and other printed matter relating to their religion. Plaintiff appeals and contends that its property rights guaranteed under the Fifth and Fourteenth Amendments of the Constitution of the United States are infringed by the decree.

The following description of Mall 205 is adapted from the statement of facts in appellant’s brief, which was adopted by respondents. The shopping center consists of two large department stores, White Front Department Store, located at one end of the complex, and Montgomery Ward, located at the other end, which together constitute approximately 65 per cent of the total floor space, and 39 relatively small specialty shops and vacant space for approximately 10 more shops. All of the-shops are included in and povered by a single ground-level building. Nine of the shops are food and beverage establishments. Except for one restaurant and bar establishment, which has an outside entrance for after-hours traffic, customers enter the small shops solely from the interior mall.

The central mall is an enclosed covered corridor approximately 415 feet in length and 35 feet in width. At each end are two courts with a fountain and planter, connecting the central mall with Montgomery Ward and White Front. Access to the interior mall is restricted to two open entryways from Montgomery Ward and White Front, and three sets of swinging doors between the center’s parking facilities and the mall. All entrances are closed and locked after normal business hours.

The interior mall is a climate-controlled environment, with background music, designed to create a pleasant business atmosphere. The interior mall includes, in addition to the walkway portions, two water fountains and two planters, together with approximately a dozen park-like benches and a directory assistance and a telephone kiosk. The mall is also the site of a candy shop, and space is available for three additional commercial kiosks.

Although each specialty shop has its own leased area which is separated from the other tenants with walls, many shops do not physically separate their premises from the interior mall; that is, that portion of the shop which fronts the interior mall is entirely open. In all cases, those establishments which do have doors keep them physically propped open during business hours. At the south end of the mall is a restaurant complex with some restaurant seating open to the interior mall.

Most Mall 205 customers arrive and depart by automobile and park in the center’s privately owned parking facilities and walk to and from such, facilities via sidewalks owned by the plaintiff.

After this case was decided by the trial court the Supreme Court decided Lloyd Corp., Ltd. v. Tanner, 407 US 551, 92 S Ct 2219, 33 L Ed 2d 131 (1972). Plaintiff contends that Tanner controls the disposition of this case and requires reversal. If so, the other issues raised by the appeal need not be considered.

In Tanner it was held that the owners of the Lloyd Center in Portland had a right to prohibit the distribution of political handbills in the privately-owned interior mall. The federal district court had held that the Lloyd Center was the “functional equivalent of a public business district,” and that the prohibition of the distribution of handbills in the mall was a violation of First Amendment rights of free expression. 308 FS 128 (1970). The Court of Appeals for the Ninth Circuit affirmed. 446 F2d 545 (1971). Those courts relied on the reasoning of the Supreme Court in Marsh v. Alabama, 326 US 501, 66 S Ct 276, 90 L Ed 265 (1946) and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 US 308, 88 S Ct 1601, 20 L Ed 2d 603 (1968). The Supreme Court held, however, that Marsh and Logan Valley were distinguishable and that the rationale of those cases did not prevent the owners of Lloyd Center from prohibiting handbilling on their premises.

We have carefully examined the agreed statement of facts and the attached exhibits and find no significant distinctions between the facts in this case and the facts in Lloyd Corp. v. Tanner. If there are any such distinctions the defendants have not called our attention to them. Although the defendants repeatedly contend that plaintiff’s mall is the “functional equivalent” of a public business district, which was the basis of the holding of the federal district court in Tanner, the Supreme Court indicated that this was not the critical question. 33 L Ed 2d at 139-140. The Supreme Court held that private owners of shopping centers could prohibit free speech activities on their premises, in spite of a general invitation to the public to enter for business-related purposes, unless some additional factor was present. In Marsh the additional factor was the private ownership of an entire town; in Logan Valley it was the direct relationship between the message of the picketers and the operation of one of the businesses in the shopping center. The Court found no such additional factor in Tanner, and Mall 205 presents, if anything, a less compelling case than does Lloyd Center. It is smaller and public access is more limited. We find nothing in the circumstances of this case which would justify a different result than that reached in Tanner.

Defendants argue that this court can give the individual rights of expression and religious freedom greater protection than that provided under Tanner by reliance on the appropriate provisions of the state constitution.^① We are, of course, free to enforce the guarantees of our state constitution so as to allow greater freedom or to give greater protection to individual liberties than are given under the federal Bill of Bights as interpreted by the United States Supreme Court. That power was recently exercised in Stevenson v. Holzman, 254 Or 94, 103-104, 458 P2d 414, 419 (1969) and in State v. Brown, 262 Or 442, 497 P2d 1191 (1972). In State v. Childs, 252 Or 91, 99, 447 P2d 304, 308 (1968) we said:

“We realize that we could construe the freedom ! of expression provision of the Oregon Constitution, ; Art. I, § 8, as providing greater freedom of expres- j sion than that of the First Amendment of the United/ States Constitution. * * * ”

This case, however, involves more than the extent of individual rights under our constitution. The issue raised by plaintiff is whether its rights under the Constitution of the United States as the owner of private property are outweighed by defendants’ First Amendment rights of free speech. If that isthe question decided by Tanner we are b0und.J3v.lhat decision and must apply itin this case. It is necessary, therefore, to determine the ratio decidendi of the Tanner decision. In writing for the majority of the court in Lloyd Corp. v. Tanner, supra, Mr. Justice Powell stated the issue in these words:

“This case presents the question reserved by the Court in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. 391 US 308, 20 L Ed 2d 603, 88 S Ct 1601 (1968), as to the right of a privately owned shopping center to prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center’s operations. * * * We granted certiorari to consider petitioner’s contention that the decision below violates rights of jirivate property protected by the Fifth, and Fourteenth Amendments. * m * ” 407 US at 552-553.

Throughout Mr. Justice Powell’s opinion are recurring statements making it clear that the court was engaged in weighing the First Amendment rights of the

respondents against the Fifth and Fourteenth Amendment rights of private property owners. Those statements include the following:

“* * * It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist. Such an accommodation would diminish property rights without significantly enhancing the asserted right of free speech.

“* * * The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that ‘no person shall . . . be deprived of life, liberty or property, without due process of law.’ There is the further proscription in the Fifth Amendment against the taking of ‘private property . . . for public use, without just compensation.’

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“We do say that the Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens, must be respected and protected. The Framers of the Constitution certainly did not think these fundamental rights of a free society are incompatible with each other. There may be situations where accommodations between them, and the drawing of lines to assure due protection of both, are not easy. But on the facts presented in this case, the answer is clear.” 407 US at 567-570.

There was no disagreement between the majority and the minority of the court in Tanner about the issue which the court was deciding. Mr. Justice Marshall in his dissenting opinion tersely stated the issue as follows:

“The question presented by this case is whether one of the incidents of petitioner’s private ownership of the Lloyd Center is the power to exclude certain forms of speech from its property. * * 407 US at 572-573.

Later in his opinion Mr. Justice Marshall also said:

“We must remember that it is a balance that we are striking—a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property-owner to control his property. * * * ” 407 US at 580.

The issue in this case, as in Tanner, is the extent to which plaintiff’s rights as a property owner can be infringed in favor of the rights of the public to free speech and freedom of expression. In the absence of any significant factual differences the decision in Tanner is controlling and requires that this case be reversed.

It is so ordered.

① Art. I, § 3: “No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience.”

Art. I, § 8: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be re'-sponsible for the abuse of this right.”