Target Could Not Make The Mark in Court: Coverage

Kristen Carey

Target lost its case against Canvass for a Cause in California Superior Court on April 9.  The corporation sought to stop volunteers for the pro-gay rights group from canvassing and asking for signatures for petitions outside its stores in the San Diego area.

Target claimed the issue was a company’s right to regulate what happens on company property.  Their legal team argued that the group was not only aggravating customers but also scaring potential customers away.  Target also claimed that the company had no issue with the group’s ideals and that they were only seeking to make customers more comfortable.

The legal team for Canvass for a Cause argued it as a free speech issue and that many shopping areas in the state of California are considered “public forum”.

The judge agreed with Canvass for a Cause, asking why Target did not present customer complaints during the hearing.  Target’s counsel said they did not think it necessary as the company was arguing for the right to discretion over its storefront.

The judge’s ruling was that as long as the group does not impede customers from going in and out of the store and stays at least 30 feet away from the entrance, Canvass for a Cause and any other group has the right to distribute materials and ask for signatures.

Was this a matter of free speech, or was it, as Target argued, about a store’s right to ban solicitors?  This case is far from being cut and dry.

While the judge cited California’s longstanding view of shopping centers as public forums, what about other states that may not include First Amendment free speech to private businesses, such as Arizona and Texas?  That would certainly change the argument.  In this case, it is easier to argue that the group had a right to canvass in front of Target because the state already had this public forum policy.

Easier, but not impossible to argue against.  In Albertson’s v. Young (2003), Albertson’s won the case against protesters that stood outside the storefront.  Individual stores lack the many walkways or courtyards that a mall does so they are not necessarily seen as public forum.  In these cases, a store would have the right to ban solicitors.

In Target’s official statement, they bring up the case of Van v. Target (2007).  In this case, the court ruled similarly to Albertson’s in that a Target is an individual store, not public forum.  It also brings up the case of Robins v. Pruneyard Shopping Center (1979) that first established the mall as public forum:

The court rejected Van’s argument. It instead held that Target stores are not public forums and that no right to free speech exists outside Target stores, even when stores are part of a larger shopping center. The court noted that unlike the shopping mall in Pruneyard, Target stores do not contain courtyards, plaza or other places designed to encourage patrons to gather or be entertained. Instead of an invitation to congregate on its premises, Target stores offer the public a more limited invitation: to purchase merchandise. The court held that Target’s interest in maintaining control over the areas in front of its stores outweighs society’s interest in using such areas for expressive activity.

The Van decision makes it clear that Target stores are not within the reach of the Pruneyard decision and that Target does not need to allow people to use its property for expressive activity. Even in shopping malls that are within the reach of the Pruneyard decision, the right under Pruneyard is to use the common areas of the mall, not the area directly outside the Target store entrance. Individuals wishing to use the common areas within shopping malls should address the matter with the shopping mall owner or operator, not with Target.

If it’s okay to distribute handouts on the windshield of people’s cars, what is the harm in passing them out a few feet away on a storefront?

And was Target being discriminatory in this case?  Many gay rights activists are quite ready to point the finger at Target for discrimination against LGBT (lesbian, gay, bisexual, and transgender)  individuals in their solicitation policy (hell, even Lady Gaga dropped her agreement with Target to be the exclusive seller of her new album).  The company also got into a bit of a trouble for backing a conservative candidate for Minnesota governor who was strongly anti-gay rights.  Target, of course, tried to save face and draft the deal with Gaga in an attempt to get back in the good graces of the LGBT community.

Based on these two incidences, it does not look good for Target.  While precedent would say that Target does have an interest in controlling the solicitation on their storefront, the company will have to work even harder now if it ever wants to be considered LGBT friendly shopping.