Last week, a woman named Deborah Tharp was arrested outside a grocery store in Costa Mesa for the crime of petitioning her government. As a video shows, this happened in exactly the kind of place – a space for public use, even within the property of a private retail establishment – where petitioners have every right to do their work under the U.S. Supreme Court’s Pruneyard decision.
I don’t know Tharp, who was gathering signatures on a medical marijuana dispensary referendum, and don’t agree with her take on that issue. But the particulars of her case aren’t all that important, though the Costa Mesa Police, who made the arrest, and the management of Mother’s Market & Kitchen, which insisted on the arrest, should issue an apology to her and make clear to the public that they understand their obligations under the state constitution.
The real import of the arrest is as evidence of a growing and serious problem in California: the lack of space for petitioners to do the work that is at the heart of democracy.
Since the Pruneyard decision found that shopping centers are the functional equivalent of the town square, retailers – with the aid of too many police departments – have sought to deny these rights and shrink public space. The courts have often piled on, punishing petitioners for exercising their constitutional rights. (Shamefully, the U.S. post office has spent years in court fighting to keep petitioners out). As a result, most petitioners – as a practical matter – have to depend on the generosity of particular retailers.
One petitioner I recently met keeps a list of places where the public gathers and where petitions may be circulated without problem or harass. In the entire state, there were fewer than 100 places on the list. That’s a shockingly low number for a place as vast as California.
This is a practical problem in California, where the petition process isn’t merely a way of communicating with the government. Petitions are part of how we govern ourselves, via the initiative process. Retailers and cops who limit petitioning are interfering in the legislative process – and thus are no different than a person who snuck into the Assembly chamber and disrupted lawmaking.
In response to the actions of retailers and police, circulators have become more aggressive. Petition coordinators have told me that their competitors (never they themselves) are hiring bigger, more menacing circulators, with instructions to chase people down streets and in parking lots. Limiting the public space for petitions has forced this kind of chase.
Tharp is to be commended for standing her ground. More petition circulators should do this, and citizens who support petitions could help them out by making a point of congratulating store owners who permit petitioners to work on their commitment to the First Amendment. Local governments need to do more to make sure that public spaces are public; if they don’t, it’d be interesting to see if a clever lawyer could devise a claim that would punish local governments financially for violating these constitutional rights.
The state government could help out by creating more public space for petition circulation – digitally. Establishing an electronic signature regime wouldn’t just save money and open up the process. It might help ease the battles in the parking lots.