Lloyd Corporation v. Whiffen ( 1993 )

TONGUE, retired Justice, pro tempore

The question presented for decision in this case is whether the owner of a large shopping center, such as the Lloyd Center, may be required by the provisions of either Article IV, section 1 (initiative and referendum), or Article I, section 8 (free speech), of the Oregon Constitution to allow persons to seek signatures on initiative petitions in the common areas of the shopping center.

We hold that persons seeking signatures on initiative petitions in the common areas of the Lloyd Center have a constitutional right to do so under Article IV, section 1, of the Oregon Constitution, subject to reasonable time, place, and manner restrictions. We further hold that three of the present restrictions, as adopted by plaintiff Lloyd Corporation (respondent on review) and approved by the trial court in this case, are unreasonable.

This is the second time that this case has been before this court. In Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) (Whiffen I), this court held, on a “sub-constitutional basis,” that defendants have some right to petition on plaintiffs property. The case then was remanded to the trial court for consideration of reasonable time, place, and manner restrictions upon the exercise of that right. In response to that decision, Lloyd Corporation then adopted rules that limited petition-gathering activity in the Lloyd Center.

Defendants then, from time to time, attempted to solicit signatures for initiative petitions in the common areas of the Lloyd Center. They wish to do so on a scale greater than that permitted by plaintiffs rules.

Plaintiff Lloyd Corporation made application to the trial court for an injunction to enjoin defendants from doing anything not in accordance with Lloyd Corporation’s adopted rules. The trial court then entered an injunction enjoining defendants from soliciting signatures on initiative petitions at Lloyd Center in violation of time, place, and manner restrictions in the rules adopted by Lloyd Corporation. Defendants appealed. The Court of Appeals affirmed. Lloyd Corporation v. Whiffen, 107 Or App 773, 813 P2d 573 (1991). We allowed defendants’ petition for review and now affirm in part and reverse in part.

CONTENTIONS OF THE PARTIES AND ISSUES TO BE DECIDED

Defendants contend that:

“The Court erred in confining petitioners to specified areas, in requiring 24 hour prior personal written notice of an intent to petition, in limiting the number of petitioners at any given time, and in banning petitioning during the Christmas and Rose Festival seasons.”

To the contrary, plaintiff Lloyd Corporation contends that:

1. “On the present record, the court cannot avoid a constitutional analysis.”

2. “Forcing the Lloyd Center to Allow Petitioning Activity on its Private Property Violates the United States and Oregon Constitutions.

‘ ‘A. Compelling the Lloyd Center to provide a forum on its private property constitutes a taking under Article I, Section 18, and under the Fifth and Fourteenth Amendments to the United States Constitution.

‘ ‘B. Compelling the Lloyd Center to provide a forum on its private property for positions with which it disagrees or on which it wishes to remain neutral violates its rights and those of its tenants under Article I, Section 8 of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution.”

3. “Petitioners do not have a Constitutional Right to Gather Signatures on Private Property.

‘ ‘A. Article I, Sections 8 and 26 do not grant petitioners the right to solicit signatures at the Lloyd Center.

“B. Article IV, Section 1 does not grant petitioners the right to solicit signatures at the Lloyd Center.”

4. “Lloyd Center’s Rules are a Reasonable Means of Minimizing Safety Risks and Reducing Distractions which Interfere with Commercial Activity.”

Several amicus curiae briefs also have been submitted in support of the positions of both parties.

During oral argument, a question was raised by a member of the court whether the fact that the City of Portland had vacated eight acres of public streets that now lie inside the Lloyd Center, which occupies about 80 acres, may provide a basis on which defendants may have a right to enter the Lloyd Center to seek signatures on initiative petitions. The parties were then requested to submit supplemental briefs on that question.

Plaintiff Lloyd Corporation, in its supplemental brief, contends, among other things, that vacating a city street extinguishes all of the public’s interest in the property. Defendants did not submit a supplemental brief on this issue, but in a letter to the court stated that they would “rely on the arguments submitted on our behalf by amicus curiae.” The brief submitted by Oregon AFL-CIO, as amicus curiae, states that:

“[T]he street vacation is not what gives rise to the public’s right to gather signatures, rather the public’s right arises from the fact that Lloyd Center’s common areas are a public forum.”

Because neither of the parties contend that the vacation of the streets provides a proper basis for the decision of this case, we find no need to discuss that question.

We next consider the contentions by plaintiff Lloyd Corporation and agree with its first contention that “on the present record, the court cannot avoid a constitutional analysis.”

I. PLAINTIFF’S “TAKING” AND “FORUM” CONTENTIONS

A, Plaintiffs “Taking” Contention

Plaintiff contends that compelling it to provide a forum on its private property is a ‘ ‘taking’ ’ under both Article I, section 18, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States.

Article I, section 18, of the Oregon Constitution provides:

“Private property shall not be taken for public use * * * without just compensation[.]”

The Fifth Amendment to the Constitution of the United States provides:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added.)

By the Fourteenth Amendment, the rights of persons as guaranteed under the Fifth Amendment are made applicable to the states.

Plaintiff does not suggest any different analysis under the Oregon Constitution than under the Constitution of the United States. Therefore, we assume, without deciding, that the analysis would be the same under both constitutions. See Dept. of Trans. v. Lundberg, 312 Or 568, 572 n 4, 825 P2d 641 (1992), cert den_US_, 113 S Ct 467, 121 L Ed 2d 374 (1992) (making that assumption). In addition, as held in Hughes v. State of Oregon, 314 Or 1, 34, 838 P2d 1018 (1992), “[n]ot every acquisition of a private property interest by the state constitutes a taking under section 18[.]”

In a previous case involving the Lloyd Center, Lloyd Corp. v. Tanner, 407 US 551, 92 S Ct 2219, 33 L Ed 2d 131 (1972), the Supreme Court of the United States held that the First Amendment to the Constitution of the United States did not confer upon persons seeking to distribute handbills within the Lloyd Center the right to do so.¹ But in the later case of PruneYard Shopping Center v. Robins, 447 US 74, 81-83, 100 S Ct 2035, 64 L Ed 2d 741 (1980), the Court held:

“Our reasoning in Lloyd, however, does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. * * *

“* * * here there has literally been a ‘taking’ of that right [to exclude others] to the extent that the California Supreme Court has interpreted the State Constitution to entitle its citizens to exercise free expression and petition rights on shopping center property. But it is well established that ‘not every destruction or injury to property by governmental action has been held to be a “taking” in the constitutional sense.’ Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 1568, 4 L.Ed.2d 1554 (1960). Rather, the determination whether a state law unlawfully infringes a landowner’s property in violation of the Taking Clause requires an examination of whether the restriction on private property ‘forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ Id., at 49,80 S.Ct., at 1569. This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. * * *

“Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause.” (Emphasis added; footnotes omitted.)

PruneYard Shopping Center v. Robins, supra, involved a large shopping center in California. Again, assuming that the analysis under Article I, section 18, of the Oregon Constitution is the same as the analysis under the Fifth Amendment to the Constitution of the United States, the result under Article I, section 18, is the same as the result in PruneYard. Accordingly, we hold that there is no “taking” in this case in violation of the Takings Clause of the Oregon Constitution or the Fifth Amendment.

B. Plaintiff’s “Forum” Contention

Plaintiff contends, in addition, that compelling it to provide a forum for positions with which it disagrees or wishes to remain neutral violates its rights and those of its tenants under Article I, section 8, of the Oregon Constitution² and the First and Fourteenth Amendments to the Constitution of the United States.

Again, plaintiff does not suggest any different analysis under the Oregon Constitution than under the Constitution of the United States. Therefore, we assume, without deciding, that the analysis would be the same under both constitutions. Dept. of Trans. v. Lundberg, supra, 312 Or at 572 n 4.

Requiring the Lloyd Corporation to permit persons seeking signatures on initiative petitions to have reasonable access to the common areas of the Lloyd Center would not, as contended by Lloyd Corporation,

“[e]ompel[] the Lloyd Center to provide a forum on its private property for positions with which it disagrees or on which it wishes to remain neutral[,] violating] its rights and those of its tenants under Article I, Section 8 of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution.”

Again, in PruneYard Shopping Center v. Robins, supra, 447 US at 85, the Supreme Court of the United States considered and decided this same question and stated that:

‘ ‘Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.”

After discussion of that contention, the Court held:

“We conclude that neither appellants’ federally recognized property rights nor their First Amendment rights have been infringed by the California Supreme Court’s decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants’ property.” Id. at 88.

Again, assuming that the analysis under Article I, section 8, of the Oregon Constitution is the same as the analysis under the First Amendment to the Constitution of the United States, the result under Article I, section 8, is the same as the result under the First Amendment inPruneYard. Plaintiff makes no separate or different contention. Plaintiffs constitutional rights to free expression are not infringed by the activities permitted to defendants in this opinion.

II. ARTICLE IV, SECTION 1, OF THE OREGON CONSTITUTION

Article IV, section 1, of the Oregon Constitution provides:

“(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.

“(2) (a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.

‘ ‘ (b) An initiative law may be proposed only by a petition signed by a number of qualified voters equal to six percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.

“(c) An initiative amendment to the Constitution may be proposed only by a petition signed by a number of qualified voters equal to eight percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.

“(d) An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution shall embrace- one subject only and matters properly connected therewith.

“(e) An initiative petition shall be filed not less than four months before the election at which the proposed law or amendment to the Constitution is to be voted upon.”

In deciding whether the owner of a large shopping center such as the Lloyd Center may be required under Article IV, section 1, of the Oregon Constitution to allow persons to seek signatures on initiative petitions in the common areas of the shopping center, it first must be decided whether the provisions of Article IV, section 1, confer upon persons seeking signatures on initiative petitions the right to go on private property to which the public has been invited.

In Lloyd Corp. v. Tanner, supra, it was held by the Supreme Court of the United States that the provisions of the First Amendment to the Constitution of the United States did not confer upon such persons the right to do so. As previously noted, however, in PruneYard Shopping Center v. Robins, supra, that Court affirmed a decision by the Supreme Court of California in Robins v. PruneYard Shopping Center, 23 Cal 3d 899, 153 Cal Rptr 854, 592 P2d 341 (1979), aff'd 447 US 74 (1980), in which the California court held that such persons had the right to do so under the provisions of the California Constitution.

As also previously noted, in affirming that decision by the California Supreme Court, it was held by the Supreme Court of the United States in PruneYard Shopping Center v. Robins, supra, 447 US at 81, that:

“Our reasoning in Lloyd, however, does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. [Citing cases.] In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.”

In Marsh v. Alabama, 326 US 501, 506, 66 S Ct 276, 90 L Ed 265 (1946), the Supreme Court of the United States held that:

“The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”

Although this court is not bound by that statement by the Supreme Court of the United States in our consideration of the questions presented in this case involving the interpretation and application of provisions of the Oregon Constitution, we nevertheless agree with that statement.

Plaintiff contends that Article IV, section 1, providing for initiative and referendum, does not “create a right to go anywhere one pleases in pursuit of signatures” on initiative petitions, citing, inter alia, a decision by the Michigan Supreme Court in Woodland v. Michigan Citizens Lobby, 423 Mich 188, 378 NW2d 337 (1985). Oregon, perhaps more than Michigan, has a long-established tradition of respect for the initiative process.

In addition, as noted infra, 315 Or at 514, we do not hold that a person pursuing signatures may go “anywhere one pleases” on the property of the Lloyd Center. We hold only that such persons may seek signatures in the common areas of the Lloyd Center, subject to reasonable time, place, and manner restrictions.

We agree with the view expressed by Williams, C. J., dissenting in Woodland, that “[a]ccess to people is the life blood of the initiative power.” Woodland v. Michigan Citizens Lobby, supra, 378 NW2d at 363 (Williams, C. J., dissenting). We also agree that this “minimal intrusion on the rights of the mall owners is justified in view of the importance of the power of initiative reserved by the people.” Id. at 365.

The dissent in this case contends that:

“Because Article IV, section 1, made signature-gathering a part of the legislative function, it seems reasonable to assume that those who voted for the initiative process expected that the right of an individual to gather signatures for initiative petitions would be protected. That does not mean, however, that any such protection is a part of Article IV, section 1. Questions as to who can petition and where that activity can occur are ancillary to the purpose of Article IV, section 1, which was to establish the process.” 315 Or at 544 (emphasis in original).

To the contrary, the statement by the dissent that where a petitioning activity can take place is ancillary to the purposes of Article IV is mere ipse dixit. According to the Random House Dictionary of the English Language (2d ed 1987), the word “ancillary” means “subordinate; subsidiary.” We hold that where persons may seek signatures on initiative petitions is not “ancillary” or “subordinate” to the purposes of Article IV, section 1, but is essential to its purpose.

We agree with the reasoning of the Court of Appeals in State v. Cargill, 100 Or App 336, 343, 786 P2d 208, rev allowed 310 Or 133, 794 P2d 794 (1990), in which it is stated:

“It is implicit in Article IV, section 1, that the people must have adequate opportunities to sign the petitions that are necessary for them to act as legislators.”

In Whiffen I, supra, this court, although deciding that case on a “subconstitutional basis,” stated:

“The signature-gathering process for political petitions is a form of political speech and no one contests that free speech is one of our society’s most precious rights. As Justice Brandéis said in his concurring opinion in Whitney v. California, 274 US 357, 375, 47 S Ct 641, 71 L Ed 1095 (1927), ‘[t]hose who won our independence believed that * * * the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.’ We might add that this is a fundamental principle of the Oregon government as well. No doubt defendants’ activity involves a very important public interest. But is that public interest seriously injured if defendants’ activity is completely blocked at the Center? We believe that it is.” 307 Or at 684-85 (emphasis added).

In that case, this court also stated:

“The process of gathering signatures is substantially impaired — almost doubled in time — if conducted on the public walkways or in parks instead of in the mall and on its walkways. Shopping malls have become part of American life. Large numbers of the public gather there. Although plaintiff tries to cloak a public mall as a private place, it is the antithesis of a private place.” Id. at 685 (emphasis added).

By those statements, this court not only considered the initiative process as “one of our society’s most precious rights,” but held that “the process of gathering signatures is substantially impaired” if signature gatherers are not permitted to gather signatures in the common areas of large shopping malls such as the Lloyd Center. Thus, where the process of gathering signatures can occur is of vital importance in making effective the purposes of Article IV, section 1, rather than “ancillary” or “subordinate” to those purposes.

The dissent also states:

“I have found no case (other than State v. Cargill, supra) that relied on a state’s constitutional provisions on initiative and referendum as the basis for recognizing a right to petition on privately owned shopping center property.” 315 Or at 545.

In Robins v. PruneYard Shopping Center, supra, 592 P2d at 345, the California Supreme Court held that:

“In assessing the significance of the growing importance of the shopping center we stress also that to prohibit expressive activity in the centers would impinge on constitutional rights beyond speech rights. Courts have long protected the right to petition as an essential attribute of governing. (United States v. Cruikshank (1875) 92 U.S. 542-52, 23 L.Ed. 588.) The California Constitution declares that ‘people have the right to * * * petition government for redress of grievances * * *.’ (Art. I, § 3.) That right in California is, moreover, vital to a basic process in the state’s constitutional scheme — direct initiation of change by the citizenry through initiative, referendum, and recall. (Cal. Const., Art. II, §§ 8, 9, and 13.)” (Emphasis added.)

That analysis is equally applicable to the problem presented in this case under Article IV, section 1, of the Oregon Constitution.³

Rather than adopt the restrictive interpretation of Article IV, section 1, proposed by the dissent in this case, this court will follow its well-established rule, as held in State ex rel Gladden v. Lonergan, 201 Or 163, 177, 269 P2d 491 (1954), that:

“It is a fundamental canon of construction that a Constitution should receive a liberal interpretation in favor of a citizen, especially with respect to those provisions which were designed to safeguard the liberty and security of the citizen in regard to both person and property.”

For the foregoing reasons, we hold that to prohibit the gathering of signatures on initiative petitions in the common areas of large shopping centers such as the Lloyd Center would “impinge on constitutional rights” conferred on the citizens of this state by the provisions of Article IV, section 1, of the Oregon Constitution. Such rights, however, are subject to reasonable time, place, and manner restrictions, as subsequently discussed in Part III of this opinion.

This course of reasoning, based largely upon acceptance of the rule of Marsh v. Alabama, supra, 326 US at 506 (315 Or at 510-11), the decision of this court in Whiffen I, supra (315 Or at 512-13), and the decision by the California Supreme Court in Robins v. PruneYard Shopping Center, supra (315 Or at 513), is hardly an “arrogation of power,” as charged by the dissent, 315 Or at 556. This opinion does not hold that Article IV, section 1, confers on persons seeking signatures on initiative petitions the right to go on any private property to which the public has been invited. This holding is limited to the facts of this case, which involve the common areas of a large shopping center such as the Lloyd Center.

The dissent also contends, 315 Or at 548-49, that for the majority to rest its opinion on rights under Article IV, section 1, to solicit signatures on initiative petitions violates the Due Process and Equal Protection Clause of the Fourteenth Amendment, and constitutes “an invidious form of discrimination that favors one form of political speech at the expense of all other forms [of political speech].”

It is true, as stated by the dissent, that the right under Article IV, section 1, to solicit signatures on initiative petitions is a form of speech and that there also are other forms of speech. We see no need in our opinion in this case to anticipate and to discuss problems presented by other forms of speech.

For those reasons, we believe that the contentions by the dissent in support of its interpretation of Article TV, section 1, have no validity as applied to the facts and issues presented in this case. To the contrary, we hold that defendants have the right under Article IV, section 1, of the Oregon Constitution to solicit signatures on initiative petitions in the common areas of the Lloyd Center, subject, however, to reasonable time, place, and manner restrictions, as next discussed.

Because we decide this case under Article IV, section 1, of the Oregon Constitution, we need not consider defendants’ argument that their right to seek signatures on initiative petitions in the common areas of the Lloyd Center also is protected under Article I, section 8, of the Oregon Constitution.

III. REASONABLE TIME, PLACE, AND MANNER RESTRICTIONS

Plaintiff Lloyd Corporation contends that persons seeking signatures on initiative petitions inside its shopping mall have no right to be there “in the first place,” with the result that plaintiff is entitled to an injunction which would prohibit such activity, both because such persons have no right to be there under either Article I, section 8, or Article TV, section 1, of the Oregon Constitution, and because:

“The uncontradicted evidence is that petitioning substantially interferes with the commercial enterprise of the Lloyd Center.”

We disagree.

For the reasons previously stated, persons seeking signatures on initiative petitions have a right to enter the common areas of the Lloyd Center for that purpose under Article IV, section 1, of the Oregon Constitution. We reject plaintiffs contentions that such persons have no right to do so because such activity “substantially interferes” with its “commercial enterprise.” The effect of that contention would be a total ban on such protected activity. In Whiffen I, supra, 307 Or at 687, this court held that:

“[Pjlaintiff is not entitled to an injunction to prohibit peaceful solicitation of signatures in the mall or on its walkways that does not substantially interfere with the commercial activity on the premises. The solicitation of signatures of patrons does not in and of itself constitute substantial interference.”

We next turn to a consideration of the rules adopted by the Lloyd Corporation, most of which were approved by the trial court as provisions of its injunction. Because both parties agree that defendants’ right to gather signatures in the common areas of the Lloyd Center are subject to reasonable time, place, and manner restrictions, we need not consider the legal basis in case law of that rule.

Defendants contend that five of the seventeen rules adopted by the Lloyd Corporation, and included in the terms of the trial court injunction, are unreasonable in that they “virtually eliminate petitioning, without significantly advancing legitimate interests of [Lloyd Center].” We thus consider the objections to each of those rules.

1. Rule 4 — Restricting Petitioning to Three Designated Areas⁴

Defendants object to the provisions of Rule 4, which would limit petitioning to three designated areas in the ‘ ‘Mall level,” contending that the petitioners should be permitted to “venture out into the general population, in the common area, in order to approach their fellow citizens.”

In defense of that rule, plaintiff offered testimony to support its contentions that the Lloyd Center is designed to allow people to “window shop” and must be “conducive to impulse buying and opportunities for shoppers to look at small shops without interference”; that “impulse buying” is a key element in the success of a shopping center; that what defendants demand is “the unfettered right to roam throughout the Lloyd Center” without restriction; and that this would substantially interfere with its commercial enterprise and that of its tenants. Defendants offered no convincing evidence to the contrary.

We agree with those contentions by plaintiff and find that Rule 4, which restricts petitioning to three designated areas, is not an unreasonable restriction on defendants’ right to gather signatures for initiative petitions.

2. Rules 1 and 2 — Requiring Advance Notice⁵

In substance, Rules 1 and 2 provide that at least 24 hours before a person may engage in petitioning, that person must file a written notice with the Lloyd Center office of intent to do so, stating the name and address of such person and the dates and times that each petitioner will be petitioning.

The general manager of Lloyd Center, Larry Troyer, testified that the 24-hour notice requirement was needed “so that we know who [the petitioners] are and when they’re going to be there,” so as to prevent “contradictory groups [from] petitioning in the same area.” Troyer also testified that advance warning assists Lloyd Center management in determining staffing needs. He stated that individuals seeking to gather signatures cannot give the required 24-hour notice over the telephone but must “[c]ome in to our receptionist and fill out an application.”

The record shows, however, that at least some individuals are deterred from participating in signature-gathering activity by the requirement that they submit a 24-hour written notice to Lloyd Center. In addition, the fact that individuals who seek signatures in support of “contradictory” political initiatives might do so in the same area of Lloyd Center does not necessarily mean that they will cause, as Troyer testified, “more disruption.”

After examination of the record, we conclude that the 24-hour notice requirement unduly restricts defendants’ signature-gathering activity. Nothing in this record persuades us that such disruption is inherently likely. In the event that such disruption does occur or is threatened, plaintiff may seek relief in court.

3. Rule 5 — Providing that “no more than two persons for each petition may gather signatures at one time in the Center” and “no more than one person for each petition shall be in any one designated petitioning area”⁶

We conclude that the trial court’s restrictions on the number of individuals who may be involved in soliciting signatures for any particular petition at any one time is too restrictive, given the importance of the interest involved. We find nothing in this record to justify quantifying the number of people who may be involved at any one time. If future experience demonstrates a need for some restrictions, plaintiff will be free to apply for relief in court.

4. Rule 15 — Not allowing petitioning during specified time periods⁷

We also conclude that this rule is not a reasonable time, place, and manner restriction on defendants’ right to gather signatures for initiative petitions. Total bans on petitioning activity at specific times are unreasonable per se, unless plaintiff can show that the interference is so substantial as to place an “unreasonable” burden on Lloyd Center. Plaintiffs evidence here does not show that.

CONCLUSION

After consideration of the evidence offered by both parties, we conclude that plaintiff has failed to prove by a preponderance of the evidence that activity by persons seeking signatures on initiative petitions in the common areas of the Lloyd Center, reasonably regulated, would substantially interfere with its “commercial enterprise.” To the contrary, there was evidence that such activity, as limited by rules adopted by the Lloyd Center, has caused no substantial injury to its business.

Because the provisions of the trial court’s injunction requiring that defendants submit a 24-hour written notice to Lloyd Center before entering Lloyd Center to gather signatures for initiative petitions (Rules 1 and 2); that defendants limit the number of signature gatherers (Rule 5); and that defendants may not petition from Thanksgiving Day until January 3 of each year and during the two-week period of the Rose Festival (Rule 15), are not reasonable time, place, and manner restrictions, they are stricken from the trial court’s injunction. Otherwise, that injunction is affirmed.

The decision of the Court of Appeals is affirmed in part and reversed in part. Rules 1,2,5 and 15, as approved by the trial court’s injunction, are stricken. The remaining provisions of the trial court’s injunction are affirmed.

1 The First Amendment to the Constitution of the United States provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

2 Article I, section 8, of the Oregon Constitution provides:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

3 The dissent cites the case ol Batchelder v. Allied Stores Int’l, Inc., 388 Mass 83, 445 NE2d 590 (1983), and, after discussion of that case, states (315 Or at 546-47) that:

“Although I have a difficult time understanding how there could not be a ‘state action’ requirement in Article 9, the construction of the Massachusetts Declaration of Rights is the responsibility of the Supreme Judicial Court of Massachusetts, not of this court. But the effects described by the dissenting justices on the Massachusetts court apply equally in other contexts, including the present one, and certainly demonstrate why, so long as there is a choice, requiring governmental action before there is any need to protect individual rights is a sensible way to construe a constitution.”

It is true that Batchelder may be distinguished from this case. For the dissent to do so, however, was nothing more than the “setting up of a straw man to knock down,” because no contention is made in this opinion based upon Batchelder.

4 Rule 4 provides:

“Political petitioning shall occur only on the mall level in the areas set forth as follows:

“a. Area 30 x 50 feet West of spiral staircase at entrance to East Mall.

“b. Area 10 x 30 feet along the railing to the North side of the ice rink, immediately West of the bridge to entrance of the North Mall on the Main Mall level.

“In addition, upon completion of the construction, and re-opening of the premises described as the West Mall, then

“c. Area 30 x 40 feet at entrance to West Mall near West end of skating rink on the main Mall level.”

5 Rules 1 and 2 provide:

“1. Prior to engaging in political petitioning, a petitioner must notify the Center management office and complete and sign a legible notice form providing the Center with the name, address and signature of the petitioner expected to be soliciting signatures, the dates and times each petitioner will be petitioning, a copy of the petition to be signed and of leaflets or literature to be distributed, if any. This notice form must be filed with the Center office at least 24 hours prior to any petitioning activities, unless such is not required under rule 2, infra.

“2. If a petitioner anticipates petitioning in the Center on a regular basis, the notice form shall specify each specific date and time (up to a maximum of four weeks in advance) that each petitioner will be petitioning at the Center. Thereafter, if that petitioner intends not to petition on any of the designated dates, the petitioner shall give telephone or other notice of that intent to the Center office at least 24 hours in advance, except in emergencies when notice shall be given as soon as possible. An individual petitioning for a petitioner may, so long as this notice form is on file, inform the Center of his or her name upon commencement of petitioning, and shall not be required to have notified the Center of such identifying information prior to commencement of petitioning, so long as this long-term petitioning notice is on file with the Center.”

6 Rule 5 provides:

“No more than two persons for each petition may gather signatures at one time in the Center and no more than one person for each petition shall be in any one designated petitioning area. However, upon completion of the construction, and the opening of the third area, described in Rule 4, then no more than three persons for each petition may gather signatures at one time in the Center. No more than a total of three persons who are carrying four or more petitions each shall be permitted in any one area designated for petitioning.”

7 Rule 15 provides:

“Political petitioning shall not be allowed from Thanksgiving Day until January 3, nor during the annual two-week period of Portland’s Rose Festival celebration.”