SAN DIEGO – Does a big-box retailer like Target have the right to ban activist groups from talking to their customers entering and leaving their stores in California?
Does an activist group like Canvass For A Cause have the right to talk to those customers outside stores like Target?
On Friday morning, Superior Court Judge Jeffrey B. Barton will listen to arguments from both sides after Minnesota-based Target Corp. sued the San Diego-based Canvass For A Cause (CFAC) to prevent the grass-roots activist group from gathering petition signatures in front of its stores in California.
The fundamental American right to free speech is at the heart of this case, said Tres Watson, executive director of CFAC who is a San Diego resident.
In an earlier court date on March 8, Judge Barton denied a motion by Target’s attorneys seeking a temporary restraining order against CFAC. Barton ruled that the right of free speech trumps over the business interest of Target in refusing the request.
In a court document, a Target official at the Poway store complained that CFAC volunteers were talking to customers about gay marriage, among other issues, and contended that they had received complaints from some customers who were upset by the topic.
Court documents also show that Target Corp. is worried that the company may be viewed as being for gay marriage if activist groups like CFAC are allowed to speak to their customers.
Watson said CFAC volunteers continue to speak to customers outside stores such as Target, Vons, Ralphs and at local malls. He said such venues are the “town squares” of the 21st century.
CFAC volunteers also note that other groups are also talking to customers outside Target, including veterans organizations and Girl Scouts.
Watson wonders whether Target wants to pick and choose which groups it allows outside its stores, and questions whether the corporation is showing bias against gay rights groups.
Target, which has gay-friendly policies for its employees, has been in hot water with the LGBT community and its allies after making sizable political contributions for conservative groups and candidates, including an anti-gay Republican running for governor in Minnesota. Groups like the Human Rights Campaign organized protests and petitions, urging Target to be more inclusive in its political donations. Target eventually overhauled its corporate policy on contributions, but critics noted that the same corporate officers who made the campaign contributions last year will be signing off on the new donations.
Meanwhile, the lawsuit in San Diego Superior Court shows that Target is not happy with grass-roots groups that support marriage equality for all.
New court documents filed this week provide a detailed look into the arguments that both sides will made at the trial on Friday.
Target is represented by the high-powered law firm of Morrison & Foerster, which has offices around the world, while Canvass For A Cause is represented by San Diego attorney Bryan W. Pease.
Dale K. Larson, one of the attorneys representing Target, argues in Target's latest court document that “Target has a fundamental and absolute right to exclude trespassers from outside its store and seeks only a limited injunction enabling it to protect its right. For these reasons, Target respectfully requests an order enjoining Defendants from directly or indirectly using property operated as a Target store for any expressive activity, including the solicitation of donations or petition signatures.”
Pease argues in CFAC's latest court document that Canvass For A Cause Institute (which is a nonprofit totally separate from CFAC) was improperly named in the Target lawsuit and that “Target has not met its burden to show that each area it wishes to insulate from free speech activity does not possess attributes of a public forum.”
The attorney for CFAC also argues that “The Court of Appeal recently held that free speech activity must be allowed outside specific stores in shopping centers.”
Furthermore, Pease argues that “Target’s ‘no solicitation’ rule cannot survive strict or intermediate scrutiny.”
Pease points out that “The San Diego Municipal Code explicitly exempts free speech activity from the prohibition against trespassing in areas that are open to the public.”
In conclusion, Pease argues that “Target has not met is burden to show that each area it wishes to insulate from free speech activity does not possess attributes of a public forum. The Court of Appeals recently held that free speech activity must be allowed outside specific stores in shopping centers. There has been no illegal or disruptive conduct by CFAC canvassers justifying a preliminary injunction, and San Diego Municipal Code § 52.80.0 I (C)(2) explicitly exempts free speech activity from the prohibition against trespassing in areas that are open to the public. Target has already implemented its own remedies to avoid being associated with Defendant's message going back almost a year, and the drastic and sudden remedy of a preliminary injunction with very little time to brief the issue is unwarranted by the facts and the law.”