Legal Corner

Summer brings more than good weather; it also brings out people who want to collect signatures for political candidates, campaigns and initiatives.  While acknowledging this activity as a legitimate part of the political process, most property owners, managers and tenants would prefer to have these individuals do their business elsewhere.  In some circumstances, the individuals can be forced to do just that. 

Courts have recognized that petition signature gatherers and political activists (“activists”) do have free speech rights in some shopping centers, but not in others.  The existence of any First Amendment rights turns on the facts and circumstances of each situation.  In general, the larger the shopping center, the more likely a court is to determine activists have First Amendment rights within the center.  The same determination is probable if a center provides a dedicated area for political speakers.  This is a threshold question, one to be considered before attempting to take any action against the activists.  Consult your lawyer before initiating any of the legal processes described below.

However, if the courts find the shopping centers are not similar to old time “town squares” and activists have no First Amendment rights in them, then courts may bar activists from shopping centers IF the shopping center owners or property managers are persistent, and coordinate their efforts with local law enforcement authorities.

The typical situation arises when an activist unexpectedly arrives on the scene and sets up a table in a shopping center to gather signatures.  When questioned the person identifies himself by name.  Management typically asks the individuals to leave and sometimes they do - end of problem.  But sometimes they come back and set up shop in a different location in the center.  Ultimately, the shopping center may choose to file a suit to stop the political activity and serve the summons and complaint on the named individual.  That individual will then disappear, only to be replaced a few days later by a different individual.  As the lawsuit named the first individual as the defendant, a new suit must be brought against the second individual and the owner/manager needs to start all over.  It’s like chasing one’s tail, in that the named defendant is continually changing and the activist’s organization is one step ahead of the game.

Most activists are employed by one of two organizations in Washington.  With persistence and many phone calls, one can determine the activist’s employer.  Armed with that information, the property owner or manager can go to court to obtain an injunction barring the named individual, his or her employer, and other unidentified employees of the employer (“John or Jane Does 1 - 10”)  from conducting business in the center.  Sometimes, mere persistence alone will deter the individual and his or her employer from conducting business, and they will close up shop and go elsewhere.

In those circumstances where activists keep returning, they can be served at the center and the employer can be served through its registered agent in Olympia.  Once service is obtained, a court will conduct a hearing to determine whether the activities should be restricted or stopped.  The hearing typically occurs on an expedited basis (in a few days or weeks), and courts have been willing to issue injunctions barring the employer and its agents and employees from conducting business on shopping center premises if the center is “small enough” so as not to confer any First Amendment rights.

Once an injunction issues, the property owner or manager needs to contact the local police.  The police must be provided with a copy of the injunction and then the owner and manager can set up a “hotline”: when an activist shows up, the property manager or owner calls the police who will show up to escort the activists from the premises.  Violators can be fined or barred, or even put into jail by a judge for repeated violations of the injunction.