WAL-MART LIKELY IN THE RIGHT ON ARREST OF PETITIONER

Wal-Mart likely was within its rights when it had police remove a marijuana
initiative petitioner from its property last week. But it was out of bounds
when it arrested another eight people Monday who protested the removal,
according to First Amendment Coalition attorney Terry Francke.

"They can't keep people off their property who are protesting over Wal-Mart
in particular," he said, noting there are different court cases governing
petitioners and picketers.

Francke said it doesn't matter whether Monday's protesters were
demonstrating against a legal or illegal activity by Wal-Mart.

Unlike the demonstrators, Francke said he believes Ukiah's Wal-Mart can
both restrict petitioners who are on its property and ban specific
petitioners.

That's because this area's appeals court - the 1st District - has ruled
that stand-alone stores are not generally places people go to hang out in
their spare time.

Shopping malls, at least in California, however, are.

In the landmark 1979 California Supreme Court case Robins v. Pruneyard
Shopping Center, the justices found that malls have taken the place of town
squares.

So, despite the fact they are on private property, they must allow free
speech activity, such as petitions.

There is no similar federal court case or law.

Francke noted even stores that fall under Pruneyard can put some limits on
petitioners.

But what those limits are have been the subject of a number of court cases
because Pruneyard did not define them.

While many of the lower court rulings favored mall and store owners,
they're not precedent-setting.

In one such case, a Sonoma County Superior Court judge allowed Raley's to
require a 30-day advance application, something free speech advocates have
called "draconian."

Courts also have allowed stores to require advance notice and to restrict
the number of days petitioners can be in one place.

Wal-Mart requires an application and confines petitioners to a 4-foot by
6-foot area.

Store managers arrested Richard Johnson last week for not complying with
that, and other of its regulations on petitioners. The demonstrators also
believe the arrest was based at least in part on the content of the
petition - the decriminalization of personal marijuana use - based on
comments the arresting manager made to police.

The one firm rule is stores and malls that fall under Pruneyard can't
discriminate based on the content of the petition.

If, as Francke believes, Wal-Mart is not a place that somehow encourages
socializing, it can impose any rules it wants on petitioners, including
excluding them completely or based on the content of their petitions.

"You can think of it as your own front yard. You can be selective. You can
allow friends to stick up a sign, hold a rally, or not," Francke said.

However, he reiterated the rules are different once the petitioners are
targeting the place itself, as were Monday's protesters.

James Ryan, a Novato attorney who has handled several lawsuits over
petitions, agreed the trend in the courts seems to be moving toward not
permitting public speech on private property.

But stores can't count on such rulings.

"The courts are split on it. Some might find it is a public place," Ryan said.

Monday's petitioners and protesters believe Wal-Mart does fall under
Pruneyard.

They've noted it has a McDonald's inside, so it's not a stand-alone store.

Ryan said it's also possible a court might find Wal-Mart is part of a mall
because of its proximity to several other stores.

"My opinion of it is the courts can craft a way to find in favor or against
the petitioning party," he said.

"I think the cases are confusing," Ryan said.