[Crim. No. 12829.

In Bank.

Aug. 20, 1969.]

#### In re DONALD ROBERT LANE on Habeas Corpus.

Neyhart, Grodin & Beeson and Duane B. Beeson for Petitioner.

Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granueci, Deraid E. Granberg and Timothy G. Laddish, Deputy Attorneys General, for Respondent.

*

Assigned by the Chairman of the Judicial Council.

BURKE, J.

In October 1967 petitioner was convicted in the Contra Costa County Municipal Court of two misdemeanors : violation of Concord Municipal Code sections 41471*873emaining on another’s property alter being notified by the ner to remove therefrom) and 41282 (distributing hand-,1s on premises of another without his consent). The Appel-;e Department of the Contra Costa Superior Court affirmed, d the Court of Appeal, First Appellate District, Division vo, denied habeas corpus without opinion. Petitioner then light relief from this court, and we issued an order to show use. Execution of judgment on conviction has been stayed aiding our decision herein. As will appear, we have con-ided that petitioner’s activities were protected as an exer-se of free speech.

Petitioner is an officer of a labor union which was involved a labor dispute with one Lesher, publisher of certain news-ipers. On June 17, 1967, petitioner appeared at the Calico arket, a large “super-market-type” grocery store located on onument Boulevard in Concord, for the purpose of distxibu-ag handbills urging customers not to patronize Calico Market ¡cause it advertised in newspapers published by Lesher, who as engaged in labor union disputes.

The Calico Market is an individual grocery store, owned id personally operated by one Stewart. It is not part of a lain and is not located in a shopping center. Stewart testi-ed that he holds under lease the 24,000 square feet occupied *Y*the store building “and all of the [customer] parking area l front of the store for 150 feet extending to Monument oulevard [a public street],” along which a public sidewalk ms.3 A sidewalk some 10 feet wide runs along and adjacent > the front of the store; two doorways off of it serve as the astomer entrances to the store building. The sidewalk is part f the privately owned property and is utilized only as a way etween the parking lot and the store. Only the Calico Market i served by the parking area, which is accessible by two riveways from Monument Boulevard, and also by a direct oute from the neighboring service station.

On the morning in question petitioner without the consent *874of owner Stewart stationed himself on the sidewalk just oi side one of the doorway entrances to the store and eommenc to distribute handbills. Petitioner did not block ingress egress of customers, and did not speak to any custome except to thank them for taking a handbill. Stewart came o of the store and requested petitioner to leave the premisi pointed out that he could pass out the handbills on the pub! sidewalk adjacent to Monument Boulevard, and warned hi that if he persisted on the store property Stewart would cf the police. Petitioner stated he intended to pass out handbi all day long, Stewart then stepped between him and a proaching customei-s, petitioner stepped around Stewart order to reach the customers and in so doing pushed Stewa back in front of the customers, who were unable to enter tl store, and Stewart “grabbed” for the handbills, which fell the ground. Stewart’s son who clerked in the store, thereupc emerged to assist his father and started to gather up tl handbills. At this point one Lambert, a companion of pel tioner, “came running down the parking lot” and yelk “That’s all right, we’ve got the picture.” Next, the polii arrived, explained to petitioner that his handbilling an remaining on the premises without Stewart’s consent const tuted misdemeanors, and when petitioner continued to do hot arrested him.

A week before this disturbance two persons passing out tl same or similar handbills had been asked to leave the parkin lot; one did so but the other continued his handbilling unt the police arrived. Lambert, petitioner’s associate, testifie that because of this prior friction he accompanied petitiont to the market property to witness the disturbance he expecte to result from further distribution at Calico, and to take phot< graphs.4 As an outgrowth of the disturbance which did occu battery charges were lodged against market owner Stewar Similarly, petitioner was charged with and convicted of vi( lation of the two Concord ordinances. (See *ante,*fns. 1, 2.)

It is established that peaceful picketing or handbillin “carried on in a location open generally to the public is absent other factors involving the purpose or manner of th picketing, protected by the First Amendment.” *(Amalgamated Food Emp. Union Local 590*v. *Logan Valley Plaza*(1968) 391 U.S. 308 [20 L.Ed.2d 603, 88 S.Ct. 1601, 1605 *875] and cases there cited.) Accordingly, petitioner had a 'ht unquestionably under the free speech guaranties to ^tribute his handbills on the public sidewalk between Monu-mt Boulevard and the parking lot of Calico Market, and the .ly constitutional question remaining is whether he had a nilarly protected right to distribute them on the privately med sidewalk areas opened by Calico for use by its cus-mers as the sole means of ingress and egress to and from *i*store.

*Marsh*v. *Alabama*(1946) 326 U.S. 501 [90 L.Ed. 265, 66 Ct. 276], involved distribution of religious literature on lewalks of the “business block” of a company-owned town, bich the opinion relates was used by the residents ‘ as their guiar shopping center.” The court states in *Logan Valley, supra*(pp. 1607-1608 of 88 S.Ct. [391 U.S. at p. 316, 20 L.Ed.2d at p. 611]), that in *Marsh,*for First Amendment irposes, it had treated such sidewalks as if they had been iblicly held. *Logan Valley*concerned the validity of a state urt decision enjoining union picketing on private property front of one store in a privately owned shopping center ¡signed to ultimately serve many businesses, but at the time rving only two stores. In reversing, the court noted that the pical suburban shopping center is “a cluster of individual tail units on a single large privately owned tract” (p. 1611 88 S.Ct. [391 U.S. at p. 324, 20 L.Ed.2d at p. 615]), and tat in the Logan Valley shopping center “the roadways pro-ded for vehicular movement within the mall and the side-alks leading from building to building are the functional [uivalents of the streets and sidewalks of a normal municipal isiness district.” (Pp. 1608-1609 [391 U.S. at p. 319, 20 L.Ed.2d at p. 612].) The opinion explicitly points out the rounds and scope of the decision (p. 1609 [391 U.S. at pp. 19-320, 20 L.Ed.2d at p. 612]) : “All we decide here is that eca.use the shopping center serves as the community business lock ‘and is freely accessible and open to the people in the rea and those passing through,’ [citing *Marsh],*the State Lay not delegate [to the private owners] the power, through le use of its trespass laws, wholly to exclude those members f the public wishing to exercise their First Amendment ights on the premises in a manner and for a purpose gener-lly consonant with the use to which the property is actually ut.

“We do not hold that respondents, and at their behest the >ta.te, are without power to make reasonable regulations *876governing the exercise of First Amendment rights on th' property. Certainly their rights to make such regulations at the very least co-extensive with the powers possessed States and municipalities, and recognized in many opinions this Court, to control the use of public property. Thus wh property *is not ordinarily open to the public,*this Court hi held that access to it for the purpose of exercising Fii Amendment rights may be denied altogether.” (Italij added.)

At the end of the opinion in *Logan Valley*the court emphj sized the adverse effect on First Amendment rights whh would result if businesses were free to isolate themselves 1| the device of surrounding their stores by parking lots: ‘ Bus ness enterprises located in downtown areas would be subje| to on-the-spot public criticism for their practices, but bui nesses situated in the suburbs could largely immunize the: selves from similar criticism by creating a *cordon sanitaire*parking lots around their stores. Neither precedent nor poli compels a result so at variance with the goal of free expre] sion and communication that is the heart of the First Amen ment.

“Therefore, as to the sufficiency of respondents’ ownersh of the Logan Ya.lley Mall premises as the sole support of til injunction issued against petitioners, we simply repeat wh was said in *Marsh*v. *State of Alabama,*326 U.S. at 506 [9 L.Ed. at 268, 66 S.Ct. at 278], ‘Ownership does not alwa. mean absolute dominion. The more an owner, for his advaij tage, opens up his property for use by the public in genera the more do his rights become circumscribed fay the statutoij and constitutional rights of those who use it.’ Logan Vail-Mall is the functional equivalent of a ‘business block’ and f(| First Amendment purposes must be treated in substantial] the same manner.” (88 S.Ct. at p. 1612 [391 U.S. at p. 32 20 L.Ed.2d at p. 616].)

In the case at hand we have the identical situation the couil warned against. If we were to hold the particular sidewal] area to be “off limits” for the exercise of First Amendme: rights in effect we would be saying that by erecting a *“cordo sanitaire*” around its store, Calico has succeeded in immunii ing itself from on-the-spot public criticism. *Logan Valle*noted (p. 1610 of 88 S.Ct. [391 U.S. at pp. 321-322, 20 L.Ed.2 at p. 614]): “Petitioners’ picketing was directed solely at on establishment within the shopping center. The berms sui rounding the center are from 350 to 500 feet away from th *8777eis store. All entry onto the mall premises by customers of leis, so far as appears, is by vehicle from the roads along hich the berms run. Thus the placards bearing the message hich petitioners seek to communicate to patrons of Weis tust be read by those to whom they are directed either at a istance so great as to render them virtually indecipherable— diere the Weis customers are already within the mall — or hile the prospective reader is moving by car from the roads nto the mall parking areas via the entrance ways cut through íe berms. In addition, the pickets are placed in some danger y being forced to walk along heavily traveled roads along hich traffic moves constantly at rates of speed varying from íoderate to high. Likewise, the task of distributing handbills > persons in moving automobiles is vastly greater (and more azardous) than it would be were petitioners permitted to ass them out within the mall to pedestrians. ’ ’

Here, the *public*sidewalk which Calico suggests is available ir First Amendment purposes is located some 150-280 feet rom the store. The posted speed limit is 40 miles per hour on lonument Boulevard which adjoins that public sidewalk. The ustomary manner by which customers reach the market is by utomobile and use of the parking lot. Thus, the difficulties nd hazards to those attempting to exercise First Amendment rivileges are as present here as they were in *Logan Valley.*

In *Schwartz-Torrance Inv. Corp.*v. *Bakery*& *Confectionery Workers’ Union*(1964) 61 Cal.2d 766 [40 Cal.Rptr. 233, 94 P.2d 921], this court also declared the right to peace-ully picket on the sidewalks of a privately owned shopping enter whose parking lot and sidewalks served the several 3ased stores. And in *In re Hoffman*(1967) 67 Cal.2d 845 [64 Cal.Rptr. 97, 434 P.2d 353], this court declared that subject o reasonable regulations handbilling in Union Station in Los Ingeles was protected as a free speech activity. The opinion ioints out (p. 847) that Union Station is owned by three ailroad companies; is a spacious area open to the community s a center for rail transportation; also, housed a restaurant, nack bar, cocktail lounge and magazine stand; is open to free ntry and use of waiting room facilities by passengers and heir friends and relatives; that entry is also free to those fho seek food or drink or magazines and newspapers; that (p. 151) so far as privacy rights were concerned a railway station 3 like a public street or park, and that noise and commotion re characteristic of the normal operation of such a station.

The only significant distinction between the cases cited and *878the instant case is the more limited purposes for which tl particular sidewalk is designed to serve; here, the custome; of one store, and in the other cases customers of two or mo: stores, or as a route of access to other places or purpose Certainly, this sidewalk is not private in the sense of n< being open to the public. The public is- openly invited to- use in gaining access to the store and in leaving the premise Thus, in our view it is a public area in which members of tl public may exercise First Amendment rights.

Certainly the paramount and preferred place given to tl First Amendment freedom of speech right in our democrat system (see *Weaver*v. *Jordan*(1966) 64 Cal.2d 235, 241 [4 Cal.Rptr. 537, 411 P.2d 289]) should be accorded precedenc over the mere “naked title” (see *Logan Valley, supra,*] 1611 of 88 S.Ct.) of market owner Stewart’s interest in tl premises.

Although in *Schwartz-Torrance Inv. Corp.*v. *Baker*y *Confectionery Workers’ Union, supra,*61 Cal.2d 766, 772-774 this court itself noted certain distinctions between the shoj ping center and similar cases involving “quasi-public places on the one hand, and the single retail store or busine; establishment on the other, we see no conflict between th United States Supreme Court decision in *Logan Valle supra,*our own decision in *Schwartz-Torrance, supra,*and ou decision in the case at hand.  We believe that the basi principles established by those decisions a.re equally applicc ble to this ease. In essence they hold that when a business establishment invites the public generally to patronize ii store and in doing so to traverse a sidewalk opened for acces by the public the fact of private ownership of the sidewal does not operate to strip the members of the public of thei rights to exercise First Amendment privileges on the sidewal at or near the place of entry to the establishment.  I: utilizing the sidewalk for such purposes those seeking to exei cise such rights may not do so in a manner to^ obstruct o unreasonably interfere with free ingress or egress to' or froi the premises.

In the light of this conclusion we need not consider peti tioner’s contention that jurisdiction over his handbillin activities is preempted under the National Labor Relation Act. (See *Schwartz-Torrance Inv. Corp.*v. *Bakery & Confectionery Workers’ Union, supra,*p. 775 of 61 Cal.2d; *In re Zerle*(1964) 60 Cal.2d 666, 670 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840].)

*879The petition for a writ is granted and petitioner is ordered [lischarged from custody.

Traynor, C. J., McComb, J., Peters, J., Mosk, J., Sullivan, J., and Molinari, J. pro tem.,* concurred.

1

Section 4147: “Every person wlio remains upon any private property or business premises within the City of Concord, after being notified by the owner or lessee or other person in charge thereof to remove therefrom, is guilty of a misdemeanor. *’ ’*

2

Section 4128: "No person shall throw or distribute upon any public treet or place, and no person shall throw or distribute upon any premises wned, occupied or controlled by another, any handbill, poster, flyer, odger, or advertisement of any merchandise, profession, business or rade without having first obtained the consent of such other person so to o, provided, that this Section shall not apply to the distribution of news-apers or of the United States Mail."

3

A witness for petitioner testified that he had "paced" the distance rom the building to Monument Boulevard and found it to be some 280 eet. Because Monument curves in front of the market property, the .¡stance apparently varies.

4

Certain of such photographs ivere introduced into evidence by peti tioner at his trial, but are among exhibits he has not brought before thi court.