High Court Won’t Hear Free-Speech Case Involving Protest Play at Mall

The California Supreme Court, sidestepping a potentially important test of free-speech guarantees, has decided not to hear a case that had been granted a hearing under former Chief Justice Rose Elizabeth Bird involving a protest at a privately owned shopping center.

The court, now led by Chief Justice Malcolm M. Lucas, issued a brief order Thursday saying the petition for review had been “improvidently granted” and would not be heard by the new court.

The justices left intact a preliminary injunction that had been issued forbidding a protest group from performing a play at a shopping center in downtown San Diego attacking U.S. foreign policy and depicting bombings in El Salvador.

Civil libertarians and business groups had given the case widespread attention, regarding it as an opportunity for the court to resolve the limits of a landmark 1979 ruling saying that under the state Constitution, political activists must be allowed to circulate petitions at private shopping centers.

Disruption Feared

In the case before the court, the owners of the 10-acre Horton Plaza shopping mall had obtained a preliminary injunction barring the Playing For Real protest group from performing political skits at the center. The owners cited fears of the disruptive effect the protest would have at the mall.

The injunction was upheld last August by the state Court of Appeal in San Diego, which rejected contentions by attorneys for the protesters that the order imposed an improper “prior restraint” on free speech and could not be issued without proof their performance threatened imminent harm.

The state Supreme Court agreed last October to hear the protesters’ subsequent appeal. But in November, Bird and two other justices who had joined in the vote to hear the case--Justices Cruz Reynoso and Joseph R. Grodin--were defeated by the voters and have since been replaced by appointees of Gov. George Deukmejian.

Thursday’s order was signed by Lucas and Justices Allen E. Broussard, Edward A. Panelli, John A. Arguelles, David N. Eagleson and Marcus M. Kaufman. The order left intact the appellate ruling upholding the injunction but barred the ruling from being used as precedent in other cases.

Trial in Superior Court

The court’s action still enables the case to proceed to trial in San Diego Superior Court over the question of whether the shopping center can legally bar protesters who want to perform plays.

The dismissal Thursday was the latest in a series of such actions--until now only in minor cases--in which the court under Lucas has decided not to hear cases granted review by the justices under Bird.

Gregory Marshall, legal director of the San Diego chapter of the American Civil Liberties Union and one of the attorneys representing the protesters, said the action was an indication the new court “perhaps considered the issue of free-speech in this case relatively unimportant.”

“The justices might have had to decide in our favor in this case and that might not have been in keeping with the image of the new ‘Deukmejian Court,’ ” Marshall said, referring to the fact that the appointees of the conservative governor now constitute a majority of the court.

Robert M. Gans of San Diego, an attorney for Horton Plaza, welcomed the action as “essentially agreeing with us that it was not improper to grant the (injunction).”