Preparing for Grocery Store Protests

Written by Emily F. Evitt

As Californians lose patience with the stay-at-home orders, we can expect more protests across the state.  And as customers face shortages and stores enforce limits on their purchases, protests at grocery stores may be particularly likely.  How can grocery stores protect themselves?

California’s Constitution grants broader free speech rights than the First Amendment.  Indeed, under certain circumstances – namely cases involving shopping malls – courts have held that California’s free speech right extends to private property where that property is the functional equivalent of a traditional public forum.  See Robbins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979).

Emboldened by California’s free speech law, protestors have repeatedly tried to demonstrate outside grocery stores.  But private property owners have fought back and won, and in doing so they have established a robust body of law protecting grocery stores’ rights.

To name a few, store owners have won cases where protestors sought to demonstrate outside: (1) Trader Joe’s (see Trader Joe’s v. Progressive Campaigns, Inc., 73 Cal. App. 4th 425 (1999)); (2) Albertson’s (see Albertson’s, Inc. v. Young, 107 Cal. App. 4th 106 (2003)); (3) Target (see Van v. Target Corp., 155 Cal. App. 4th 1375 (2007)); and (4) Ralphs (see Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, 55 Cal. 4th 1083 (2012)).

Ralphs Grocery, which was decided by the California Supreme Court in 2012, was the culmination and synthesis of these cases.  In it, the Court explained that – unlike the common areas of shopping malls – the areas outside grocery stores are not the functional equivalent of a traditional public forum because they are not designed to encourage shoppers to gather for entertainment, relaxation, or conversation.  Therefore, the public has no free speech right in grocery store entrances and parking lots (though different rules govern labor protests).

In anticipation of consumer protests, grocery stores should consider the following steps:

1. Confirm that your grocery store entrance and parking lot are not designed in a way that encourages entertainment, relaxation, or conversation. While courts have found that a courtesy bench and even a hot dog stand do not convert a store entrance into a public forum, avoid features that would arguably encourage the public to come “hang out” outside your grocery store.
2. Strategize with your store’s security team about your plan for responding to a protest. How will your security team contain the protest?  At what point will security call the local police?
3. Consult with counsel. Counsel can advise both on how to avoid a lawsuit by protestors, and on whether and how to file a lawsuit against protestors.

~Emily F. Evitt is a partner in MSK’s litigation department whose specialties include defending private property owners against California Constitutional free speech claims.