The California Supreme Court just came out with an interesting non-decision that bears on the November election’s confirmation votes. The justices voted not to hear a petition for review on a recent appellate case on free speech in shopping centers. At issue was a preacher who was talking to willing listeners about his religion. A security guard came up and told him to stop. When he refused, he was handcuffed, arrested, and escorted from the mall. He was later released and charges were dropped, but he sued the shopping center for false arrest and interference with his California free speech rights. While the trial court rejected his suit, the court of appeal, in an opinion written by the new chief justice, Cantil-Sakauye, reversed.
Cantil-Sakauye’s opinion pointed to a California Supreme Court opinion from the Bird court some thirty years ago that said that the California Constitution’s free speech rights guarantee was broader than that of the U.S. Constitution, and covered semi-public places like shopping malls. Under that ruling, and subsequent appellate case law, while shopping malls can make reasonable regulations about the time, place, and manner of speech, they can’t make content-specific rules unless those rules are justifiable under “strict scrutiny”. The rules this mall had promulgated, which only allowed conversations related to commercial transactions, were absurdly narrow and subject to blatantly discriminatory enforcement (as was evident in the case). Nevertheless, Justice Ming Chin, along with Justice Baxter (the long-standing right-wing bulwark of the court) voted to grant review.
Cantil-Sakauye and Ming Chin are both on the ballot for confirmation this election. This appellate decision and its supreme court review suggest that you might want to vote for one or the other, but not both. If you agree with Cantil-Sakauye’s ruling, you should probably vote for her and against Ming Chin’s attempt to reverse more than thirty years of precedent. If you’d rather have restricted speech in shopping malls (which is where Ming Chin probably wanted to take things), you should vote for him and against her.