Judicial rebuttal.

• Author: Mosk, Stanley
• Position: Response to article by Stanley H. Friedelbaum in this issue, p. 1229

I am flattered at the dedication to me of the State Constitutional Commentary issue of the Albany Law Review, a publication for which I have tremendous respect.

It is comforting to be told in this manner that my opinions--whether one agrees or not with their analysis and result--are being read and given appropriate consideration.

In a somewhat unusual sequence of events, the editors suggested that I comment on the thoughtful article by Professor Stanley Friedelbaum which in turn comments on opinions I have rendered in shopping center cases.(1) This might be characterized as a form of judicial rebuttal.

It has been inevitable that a conflict would arise between proponents of two diverse rights. Pickets and solicitors of signatures on petitions necessarily have a different point of view on their right of access to shopping center property than do owners whose basic command is "shut up and shop."

As early as 1970 our California Supreme Court, in a 6-1 opinion, discussed cases, including some federal authorities, that held shopping centers, being "the functional equivalent of [a public] business district" could not bar union picketing.(2) Our court then went one short but significant step further and concluded that "[u]nless there is obstruction of or undue interference with normal business operations, the bare title of the property owners does not outweigh the substantial interest of individuals and groups to engage in peaceful and orderly First Amendment activities on the premises of shopping centers open to the public."(3)

Four years later Diamond v. Bland(4) again appeared on the horizon and this time a 4-3 majority of the state court felt bound by what they saw as United States Supreme Court protection of property rights.(5) As Professor Friedelbaum observed, I strongly dissented in that reversal and adhered to the original opinion involving the same parties.(6) I am pleased that he described my dissent as "prescient."(7)

The issue would not go away. In 1979, our court faced the same problem in Robins v. Pruneyard.(8) We observed that the conflict did not involve a lone householder or even a small business enterprise.(9) The property owner was a vast shopping center attracting some 25,000 persons daily--virtually a city in itself.(10) A solicitor of signatures, or one passing out leaflets, could hardly have any deleterious impact on the vast shopping center operations. As in the first Diamond v. Bland opinion, our court reverted to its...