Young

Over two decades ago, our state Supreme Court concluded that a privately owned shopping center that attracts large numbers *109 of people to congregate in order to shop and take advantage of other amenities offered by the shopping center is the functional equivalent of the traditional town center, which historically is a public forum where persons can exercise the right to free speech. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 , 910-911 & fn. 5 [ 153 Cal.Rptr. 854 , 592 P.2d 341 ] (hereafter Pruneyard).) Therefore, the Supreme Court held that the free speech clause of California’s Constitution precluded the Pruneyard Shopping Center from preventing a small group of individuals from setting up a table within the center to peacefully distribute handbills and solicit signatures on petitions. (Id. at pp. 910-911.)

James Young, Eloise Voneckert, John Slevin, Charles Noble, Christopher Noble, and Edward Noonan (defendants) are individuals who solicit and gather signatures on initiative petitions to place measures on election ballots. Armed with initiative petitions and the holding in Pruneyard, defendants attempted to solicit the signatures of shoppers by…

—I concur with the majority’s affirmance of the judgment, but, with respect, I do not agree with the majority’s reasoning. I think the free speech guarantees of the California Constitution protect against infringement by private citizens. I also think there has never been a time when the initiative process was more deserving of encouragement. However, this judgment must be affirmed on a narrow ground: appellants failed to prove that this Albertson’s store had replaced the public downtowns of Nevada City and Grass Valley as a public forum. The trial court made a factual finding that, “No evidence established that Albertson’s was a ‘miniature downtown’ as identified by the Pruneyard court [Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [ 151 Cal.Rptr. 854 , 592 P.2d 341 ]].” It is therefore appellants’ failure of proof that requires affirmance of the judgment in this case.

I

Article I, sections 2 and 3 of the California Constitution protect against infringement by private conduct

A threshold question is whether the free speech clauses of the California Constitution (art. I, §§ 2, 3 1 ) guard against infringement on speech only by the government, or also by private…

Over two decades ago, our state Supreme Court concluded that a privately owned shopping center that attracts large numbers of people to congregate in order to shop and take advantage of other amenities offered by the shopping center is the functional equivalent of the traditional town center, which historically is a public forum where persons can exercise the right to free speech. ( Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 , 910-911 & fn. 5, 153 Cal.Rptr. 854 , 592 P.2d 341 (hereafter Pruneyard).) Therefore, the Supreme Court held that the free speech clause of California's Constitution precluded the Pruneyard Shopping Center from preventing a small group of individuals from setting up a table within the center to peacefully distribute handbills and solicit signatures on petitions. (Id. at pp. 910-911, 153 Cal.Rptr. 854 , 592 P.2d 341 .)

James Young, Eloise Voneckert, John Slevin, Charles Noble, Christopher Noble, and Edward Noonan (defendants) are individuals who solicit and gather signatures on initiative petitions to place measures on election ballots. Armed with initiative petitions and the holding in Pruneyard, defendants attempted to solicit…