Justices to Consider Mall Ban on Political Skits

The state Supreme Court said Friday it will decide if political protesters can be barred from using a privately owned shopping center to perform a play attacking U.S. foreign policy and depicting bombings in El Salvador.

The justices, in a brief order, said they will review a state appellate court ruling upholding an injunction forbidding a group of “street entertainers” to perform skits at the Horton Plaza shopping center in San Diego.

The case may resolve important questions remaining after a landmark 1979 ruling by the court saying that under the state Constitution, political activists must be allowed to circulate petitions at private shopping centers.

Left to State Courts

A year later, the U.S. Supreme Court ruled that there is no such protection under the First Amendment of the U.S. Constitution--but said that state courts were free to invoke their own constitutions to balance the rights of free expression against the rights of private property ownership.

Since then, several states have followed California’s lead and held that in certain instances, shopping malls, private colleges and other private property owners cannot bar activists from circulating petitions and distributing literature.

But the question of whether constitutional protection extends to such activities as dramatic productions remains unanswered.

The new case before the court centers on the validity of a preliminary injunction obtained in San Diego Superior Court by the owners of Horton Plaza, a 10-acre downtown shopping mall, barring the Playing for Real Theatre from performing political skits at the center.

The shopping center cited what it said were police intelligence reports that the theatrical group intended to disrupt activity at the mall during a dramatic protest of warfare in Central America, including a portrayal of bombing in El Salvador.

Intention of Violence Denied

The San Diego theatrical group denied any intention of violence or disruption, saying it only wanted to perform a 10-minute skit to dramatize its opposition to U.S. policy.

The state Court of Appeal in San Diego upheld the injunction by a vote of 2 to 1. The court noted that the order still permitted protesters to circulate petitions or distribute literature and that the theatrical group had not shown that the mall effectively served as a “public forum” or that the performance at issue could not be held at a nearby public park.

Gregory Marshall, legal director of the San Diego chapter of the American Civil Liberties Union, welcomed the announcement that the Supreme Court will hear the case. “We believe the Court of Appeal opinion was seriously flawed,” Marshall said.

The court’s decision, expected sometime next year, could substantially clarify the justices’ 1979 ruling as to “where the right to private property leaves off and the right to a ‘public forum’ begins,” Marshall said.

Attorneys for the shopping center were not immediately available for comment.

The court’s order granting review was signed by Chief Justice Rose Elizabeth Bird and Justices Stanley Mosk, Allen E. Broussard, Cruz Reynoso and Joseph R. Grodin.