GOLDEN GATEWAY CENTER, Plaintiff, Cross-defendant and Appellant, v. GOLDEN GATEWAY TENANTS ASSOCIATION, Defendant, Cross-complainant and Respondent, 26 Cal. 4th 1013

Opinion BROWN, J. In a groundbreaking decision over 20 years ago, we departed from the First Amendment jurisprudence of the United States Supreme Court and extended the reach of the free speech clause of the California Constitution to privately owned shopping centers. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910 [153 Cal.Rptr. 854, 592 P.2d 341] (Robins), affd. sub nom. Pruneyard Shopping Center v.

Robins (1980) 447 U.S. 74 [100 S.Ct. 2035, 64 L.Ed.2d 741].) Since then, courts and commentators have struggled to construe Robins and determine the scope of protection provided by California’s free speech clause. Today, we clarify Robins and consider whether a tenants association has the right to distribute its newsletter in a privately owned apartment complex under

article I,

section 2, subdivision (

a) of the California Constitution. We conclude it does not. Background Golden Gateway Center (Golden Gateway), a limited partnership, owns a retail and residential apartment complex (Complex) in downtown San Francisco. The Complex consists of four high-rise buildings and a group of townhouses and contains 1,254 residential units. Although the Complex contains a number of retail establishments at the ground level, these retail establishments are separate from the residential units and do not have access to the residential portions of the Complex.

In the residential portion of the Complex, Golden Gateway emphasizes privacy and security. Consistent with this emphasis, Golden Gateway provides doormen during the daytime and 24-hour roving security patrols, and limits access to residential tenants and their invitees. Golden Gateway also promulgates building standards incorporated by reference in every residential lease agreement. At all relevant times, these standards banned all solicitation in the building.

As part of their lease agreements, all residential tenants agree to abide by these standards, and Golden Gateway retains the right to “make amendments to the Building Standards and adopt further Building Standards as in Owner’s opinion are reasonable or desirable for the proper and orderly care, use and operation of the Apartment and Building and its grounds . . . .” In 1982, a group of residential tenants in the Complex formed a tenants association called the Golden Gateway Tenants Association (Tenants Association).

Since its inception, the Tenants Association has periodically distributed a newsletter on or under the apartment doors of all residential tenants. For approximately 11 years, building management did not object to the distribution of these newsletters. In 1993, however, the manager of the Complex asked the Tenants Association to stop distributing newsletters on or under apartment doors. In support, the manager cited the prohibition against “soliciting within the building” found in the building standards in effect at that time.

The Tenants Association responded with several letters from attorneys asserting its constitutional right to free speech and threatening legal action.

Hoping to avoid litigation, the manager told the Tenants Association that “Golden Gateway Center management will not oppose the distribution of newsletters under apartment doorways by members of the Golden Gateway Tenants’ Association provided it is done in a reasonable manner.” Based on this representation, the Tenants Association resumed its “practice of distributing GGTA newsletters to all tenants by sliding them under doors . . . .” Neither building management nor the Tenants Association, however, discussed or defined what “a reasonable manner” meant. Golden Gateway hired a new building manager in 1995.

In early 1996, the Tenants Association sharply increased its leafletting activity and distributed at least eight separate newsletters and notices from February to May. Because of this increased activity, the new manager asked the Tenants Association to scale back its leafletting and to limit its distributions to newsletters. Citing the First Amendment of the United States Constitution, the Tenants Association refused and continued to distribute its newsletter to all residential tenants. Soon after, Golden Gateway revised its building standards.

The revised standards stated in relevant part: “Any solicitation within the building is absolutely forbidden. This includes, for example, solicitation for profit, political purpose or any other reason, whether in writing or in person. . . . [H] Leafleting within the building is absolutely forbidden.

This includes, for example, posting leaflets or notices anywhere in the buildings other than on the bulletin boards located in the laundry rooms, sliding leaflets or other papers underneath tenants’ doors, placing leaflets or other papers on or about tenants’ doors, or leaving multiple copies of leaflets or other papers in any common areas.

The only exception to this rule is where a tenant specifically requests that papers be delivered to him or her either under or in front of his or her door. . . .” Golden Gateway mailed a copy of the new standards to each residential tenant and explained that each tenant must comply with these standards pursuant to his or her lease agreement. Despite the new building standards, the Tenants Association continued to distribute its newsletter door-to-door.

Golden Gateway then filed a complaint, seeking to enjoin the Tenants Association from distributing leaflets “in and around their apartment doors.” The Tenants Association responded by filing a cross-complaint for injunctive and declaratory relief. The cross-complaint contended, among other things, that the Tenants Association had a constitutional right to distribute its newsletters. The trial court initially issued a preliminary injunction enjoining the Tenants Association from leafletting.

After trial, however, the court dissolved the injunction and held that the Tenants Association had “a binding contractual right to distribute its newsletter throughout” the Complex “by placing its newsletters under the doors of all tenants, on the door knobs of tenants, and on bulletin boards that are provided.” Upon resolving the case on contractual grounds, the court declined to reach the constitutional free speech issues. The Court of Appeal reversed.

After concluding that Golden Gateway did not enter into “a binding lease agreement modifying its Building Standards” with the Tenants Association based on the first manager’s representation, the court held that the Tenants Association had no right to leaflet in the Complex under the United States or California Constitution.

We granted review to determine: (1) whether the tenants association of a large apartment complex has the right, under the California Constitution, to distribute its newsletter and other leaflets concerning residence in the complex to tenants in the building; and, if so, (2) whether a ban on the distribution of these materials to tenants constitutes an unreasonable time, place and manner restriction on free speech. Discussion I In Hudgens v.

NLRB (1976) 424 U.S. 507, 519-520 [96 S.Ct. 1029, 1036-1037, 47 L.Ed.2d 196] (Hudgens), the United States Supreme Court held that a union had no federal constitutional right to picket in a shopping center because the actions of the private owner of the shopping center did not constitute state action. Hudgens, supra, at pages 518-519 [96 S.Ct. at pages 1035-1036], expressly reversed Food Employees v. Logan Plaza (1968) 391 U.S. 308 [88 S.Ct. 1601, 20 L.Ed.2d 603] (Logan Plaza), by clarifying and extending the court’s ruling in Lloyd Corp. v.

Tanner (1972) 407 U.S. 551, 570 [92 S.Ct. 2219, 2229-2230, 33 L.Ed.2d 131] (Lloyd) (holding that political leafletters had no federal free speech rights in a privately owned shopping mall). As acknowledged by both parties, Hudgens and Lloyd establish that the Tenants Association has no right to distribute its newsletter door-to-door under the United States Constitution.

The lack of federal constitutional protection does not, however, “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.” (Pruneyard Shopping Center v. Robins, supra, 447 U.S. at p. 81 [100 S.Ct. at pp. 2040].) Thus, the Tenants Association may still prevail if the free speech clause of the California Constitution protects its leafetting activities. (Art. I, § 2, subd. (a).) As explained below, we conclude it does not.

Article I,

section 2, subdivision (

a) states: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Unlike the United States Constitution, which couches the right to free speech as a limit on congressional power (see U.S. Const., 1st Amend.), the California Constitution gives “[e]very person” an affirmative right to free speech (Cal. Const., art. I, § 2, subd. (a)). Accordingly, we have held that our free speech clause is “more definitive and inclusive than the First Amendment . . . .” (Wilson v.

Superior Court (1975) 13 Cal.3d 652, 658 [119 Cal.Rptr. 468, 532 P.2d 116].) Consistent with this more expansive

interpretation of California’s free speech clause, we have declined to follow the First Amendment jurisprudence of the United States Supreme Court in certain circumstances. Perhaps our most noteworthy departure from this jurisprudence occurred in Robins. In Robins, the majority reversed Diamond v. Bland (1974) 11 Cal.3d 331 [113 Cal.Rptr. 468, 521 P.2d 460] (Diamond II), and held that “sections 2 and 3 of

article I of the California Constitution protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” (Robins, supra, 23 Cal.3d at p. 910.) In doing so, the majority rejected the approach of Hudgens and Lloyd and reasserted the independent force of the California Constitution. (See Robins, at pp. 908-909.) Despite the clarity of its ultimate disposition, Robins was less than clear “as to the scope of the free speech rights it was recognizing.” (Brownstein & Hankins, Pruning Pruneyard: Limiting Free Speech Rights Under State Constitutions on the Property of Private Medical Clinics Providing Abortion Services (1991) 24 U.C.

Davis L.Rev. 1073, 1090 (Pruning Pruneyard).) For example, Robins did not address the threshold issue of whether California’s free speech clause protects against only state action or also against private conduct. (See Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 838 [182 Cal.Rptr. 813] (Laguna Publishing) [finding Robins “intriguing” because it never discussed or impliedly dealt with “the phenomenon of state action”].) Robins also provided little guidance on how to apply it outside the large shopping center context. (Pruning Pruneyard, supra, 24 U.C.

Davis L.Rev. at p. 1092 [Robins did not provide “useful guidance on how this new constitutional journey was to proceed”].) Not surprisingly, numerous legal commentators have pointed out and questioned these curious omissions in Robins. Moreover, most of our sister courts interpreting state constitutional provisions similar in wording to California’s free speech provision have dechned to follow Robins.

Indeed, some of these courts have been less than kind in their criticism of Robins. (See, e.g., SHAD Alliance, supra, 488 N.E.2d at p. 1214, fn. 5; Jacobs, supra, 407 N.W.2d at p. 841.) Nonetheless, Robins has been the law in California for over 20 years.

Whether or not we would agree with Robins’s recognition of a state constitutional right to free speech in a privately owned shopping center if we were addressing the issue for the first time, we are obliged to follow it under principles of stare decisis. “ ‘[E]ven in constitutional cases, the doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some “special justification.” ’ ” (Dickerson v. United States (2000) 530 U.S. 428, 443 [120 S.Ct. 2326, 2336, 147 L.Ed.2d 405], quoting United States v.

International Business Machines Corp. (1996) 517 U.S. 843, 856 [116 S.Ct. 1793, 1801, 135 L.Ed.2d 124].) Because Robins is embedded in our free speech jurisprudence with no apparent ill effects, no such justification exists here. We are, however, mindful of the ambiguities in Robins. In the hopes of clarifying Robins and providing some guidance as to the scope of the free speech rights guaranteed by the California Constitution, we now answer some of the questions left open by Robins. Based on these answers, we hold that the Tenants Association has no state constitutional right to leaflet in the Complex.

II “[B]efore state courts can fully resolve . . . substantive free speech . . . issues, a proper constitutional analysis requires that they first address the threshold issue of whether the . . . suits are barred by a state action requirement.” (Note, Post-Pruneyard Access to Michigan Shopping Centers: The “Mailing” of Constitutional Rights (1983) 30 Wayne L.Rev. 93, 97, fn. omitted (Post-Pruneyard Access); see also Private Property, Public Property, supra, 62 Alb.

L.Rev. at p. 1239 [state action question should be “a threshold issue” in any analysis of constitutional free speech rights].) Thus, by neglecting to mention state action, Robins created a noticeable gap in its reasoning and left the existence of a state action limitation on California’s free speech clause in doubt. (California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 413; Free Speech Access to Shopping Centers, supra, 68 Cal.

L.Rev. at p. 645.) Indeed, our lower courts have commented on this “intriguing” omission. (Laguna Publishing, supra, 131 Cal.App.3d at p. 838.) Not surprisingly, the uncertainty surrounding the fate of the state action limitation has spawned a debate over the wisdom of extending our free speech clause to private actors. We now fill this gap and conclude that California’s free speech clause contains a state action limitation. As an initial matter, we note that the first sentence of

article I,

section 2, subdivision (

a) contains no explicit state action limitation. The California Constitution gives every person the right to “freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” (Art. I, § 2, subd. (a).) The breadth of this language combined with the framers’ arguable understanding of its ramifications suggests an intent to protect the right to free speech against private intrusions. {Private Actors, supra, 17 Hastings Const. L.Q. at pp. 119-121.) The express prohibition against a “law” restraining or abridging free speech found in the second sentence of the clause arguably bolsters such an

interpretation. (Art. I, § 2, subd. (a).) Nonetheless, the absence of an explicit state action limitation in

article I,

section 2, subdivision (

a) is not dispositive. In the past, we have found a state action requirement even though the language of the California constitutional provision in question—article I,

section 7—did not expressly state such a requirement. (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 468 [156 Cal.Rptr. 14, 595 P.2d 592] (Gay Law Students Assn.); see also Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333 [70 Cal.Rptr.2d 844, 949 P.2d 941] [stating that the search and seizure provision of the California Constitution—article I,

section 13—contains a state action limitation even though the provision contains no such limiting language].) We declined to apply that provision “without regard to any state action doctrine whatsoever” absent some “suggestion” in the provision’s history for abandoning such a limitation. (Gay Law Students Assn., at p. 468.) Thus, “[t]he omission [of state action language] . . . does not necessarily evince an intent to apply constitutional guarantees to private parties.” (Margulies, A Terrible Beauty: Functional State Action Analysis and State Constitutions (1988) 9 Whittier L.Rev. 723, 729 (A Terrible Beauty).) Moreover, the language of

article I,

section 2, subdivision (

a) equally supports a state action limitation. The second sentence of the clause—which prohibits any “law” from restraining or abridging “liberty of speech” (ibid.)—indicates an intent to protect against only state actions. “Adding this prohibition on oppressive laws might mean that, although the delegates wished to declare generally the sanctity of free expression, they feared only government intrusions.” (Private Actors, supra, 17 Hastings Const.

L.Q. at p. 121.) Such a reading is consistent with the view courts take of the Fourth Amendment, which is similar in structure to California’s free speech clause. (Ibid.) Thus, as acknowledged by the primary scholar cited by the dissent, the language of California’s free speech clause is ambiguous and supports either the presence or absence of a state action limitation. (Private Actors, supra, 17 Hastings Const.

L.Q. at p. 125 [“The text does not compel a finding that private parties are bound; it only creates an opportunity to do so”]; see id. at p. 121; see also A Terrible Beauty, supra, 9 Whittier L.Rev. at p. 729.) Where, as here, the text is “not conclusive” (Private Actors, supra, 17 Hastings Const. L.Q. at p. 121), we must look to the history behind California’s free speech clause for guidance (see Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 16 [26 Cal.Rptr.2d 834, 865 P.2d 633] (Hill)).

This history indicates that the framers intended to impose a state action requirement. (See Gay Law Students Assn., supra, 24 Cal.3d at p. 468 [finding a state action limitation based on the history behind the due process and equal protection clauses of the California Constitution].) We initially note that the debates over the California Constitution do not show an intent to extend the reach of its free speech clause to private actors. Although “the designation of

article I’s free speech clause has changed appreciably over the years ... its language has not.” (Gerawan, supra, 24 Cal.4th at p. 489.) Thus, the current incarnation of California’s free speech clause is virtually identical to the free speech clause in the original California Constitution adopted in 1849. (Compare Cal. Const., art. I, § 2, subd. (a), with Cal. Const, of 1849, art. I, § 9.) The original framers adopted this language with no debate. (See Browne, Rep. of Debates in Convention of Cal. on Formation of State Const. (1973 ed.) p. 41 (Browne); see also Private Actors, supra, 17 Hastings Const.

L.Q. at p. 119.) In fact, “[t]he debates, which on other provisions are quite detailed, contain no record of any ‘original intent’ of these delegates in regard to the private/public distinction.” (Private Actors, supra, 17 Hastings Const. L.Q. at p. 119.) Thus, the debates over California’s free speech clause give no indication that the framers wished to guard against private infringements on speech. Meanwhile, the historical antecedents of our free speech clause strongly suggest that the framers of the California Constitution intended to include a state action limitation.

Many of the framers of the 1849 California Constitution came from New York. (See Browne, supra, at pp. 478-479.) Not surprisingly, in drafting the free speech clause, the framers borrowed from the free speech clause of the New York Constitution. (Browne, supra, at p. 31.) Because they adopted New York’s free speech clause virtually unchanged and with no debate (Private Actors, supra, 17 Hastings Const. L.Q. at p. 119), the history behind New York’s clause is relevant to interpreting California’s free speech clause (see Citizens for Parental Rights v.

San Mateo County Bd. of Education (1975) 51 Cal.App.3d 1, 25-26, fn. 26 [124 Cal.Rptr. 68, 82 A.L.R.3d 544] [finding the history behind the New York Constitution relevant to interpreting a clause of the California Constitution based on a clause in the New York Constitution]).

A review of this history reveals that the framers of the New York Constitution intended its free speech clause “to serve as a check on governmental, not private, conduct.” (SHAD Alliance, supra, 488 N.E.2d at p. 1214.) The free speech clause of the New York Constitution was adopted in 1821 as part of that Constitution’s Bill of Rights and remained essentially unchanged after New York revised its Constitution in 1846. “The explicit reason [behind the adoption of New York’s free speech clause] was to prevent the legislature from restricting these freedoms by statute.” (Galie, The New York State Constitution (1991) p. 51, fn. omitted.) As one of the delegates to New York’s 1821 constitutional convention explained, the free speech clause “was doubtless intended to secure the citizens . . . against the arbitrary acts of the legislature . . . .” (Carter & Stone, Reports of the Proceedings and Debates of the Convention of 1821 (1821) p. 167 (Reports of the Proceedings).) In addition, the delegates to the 1821 New York constitutional convention viewed the free speech clause as protection against the “usurpations by our judiciary” of libel actions from the jury. (Id. at p. 490; see also id. at p. 167.) The framers of New York’s free speech clause, however, were not concerned with private interference with speech. “[Wjhile most of the delegates were eager to defend the public’s rights against official or legal interference, they were unwilling to countenance unlimited freedom of expression . . . .” (Casias, The New York State Constitutional Convention of 1821 and its Aftermath (Colum.

U. 1967) p. 139.) Indeed, the framers of the 1821 New York Constitution viewed the Constitution’s Bill of Rights, including its free speech clause, as a bulwark against government oppression, not private conduct. (See Reports of the Proceedings, supra, at pp. 59, 163, 171-172.) As one delegate explained, “[a] bill of rights setting forth the fundamental provisions of our government, has always been held sacred, and I have seen, as other gentlemen familiar with legislation must have seen, the utility of this bill of rights . . . one calculated to restrain useless and improvident legislation.” (Id. at p. 163.) Another delegate later reiterated this understanding: “[A] bill [of rights] like this reported, is not a bill enumerating the rights of the people, but restricting the power of the legislature.” (Id. at p. 172.) According to this same delegate, a “bill of rights, setting forth the privileges of the people would be useless, nay, might be injurious; because in purporting to set forth the rights of the people, if any were omitted, they might be considered to be yielded.” (Ibid.) This elucidation of the intent behind New York’s free speech clause also conforms with the framers’ understanding of the overarching purpose behind the 1821 New York Constitution. “The intent of the constitution that we are framing, and of every constitution, is to distribute to these [government] agents the power thus derived from the people:—to mark the limits of their authority, and provide the means of restraining them in its exercise, within their apprppriate sphere.” (Reports of the Proceedings, supra, at p. 110.) Pre-1849 judicial statements regarding the scope of New York’s free speech clause further confirm that the framers of the New York Constitution intended to protect against only government encroachments.

As the Chancery Court of New York observed, “[t]hat great principle of a free govemment[,] the liberty of speech and of the press, is very wisely guarded by a constitutional provision against the encroachment of either legislation or judicial power” (Wetmore v. Scovell (N.Y.Ch. 1842) 3 Edw. Ch. 543, 562, italics added.) Thus, the framers of the New York Constitution undoubtedly intended that New York’s free speech clause protect against only state action—and not private conduct.

Because the framers of the California Constitution adopted New York’s free speech clause almost verbatim, we reasonably conclude they had the same intent as their New York counterparts. (Cf. Stockton Civic Theatre v.

Board of Supervisors (1967) 66 Cal.2d 13, 21 [56 Cal.Rptr. 658, 423 P.2d 810] [finding that statutory language taken verbatim from a constitutional provision must be given the same meaning as the language in the constitutional provision “unless a clear legislative intent to the contrary appears”].) This conclusion follows logically from the mindset of the framers of the 1849 California Constitution during its drafting.

General Bennett Riley issued the call for the 1849 convention “for the purpose of providing such a government as California might need.” (Coy & Jones, California’s Constitution (1930) p. 12; see also Browne, supra, at pp. 3-4.) Thus, the framers of the 1849 California Constitution were focused on defining the scope of the government’s power.

Consistent with this focus, various delegates observed that the Constitution should protect against governmental action. (See, e.g., Browne, supra, at pp. 92, 130 [“the object of this Convention is to limit the powers of the Legislature”; “We are guarding here against bad Legislatures”].) As a result, the California “Constitution of 1849 was not a grant of power to the Legislature but a limitation upon it.” (Conmy, The Constitutional Beginnings of California (1959) p. 23, fn. 48, italics added.) “It is abundantly clear that the draftsmen of the 1849 and 1879 constitutions regarded the California Constitution as the principal bulwark protecting the liberties of Californians from governmental encroachment.” (Grodin et al., The Cal.

State Constitution (1993) p. 21, italics added.) In any event, our extensive review of the history behind the adoption of California’s free speech clause reveals no evidence suggesting that the framers intended to protect against private encroachments. The lack of such evidence is hardly surprising given the prevailing perception of state constitutions in 1849, as expounded by the United States Supreme Court: “Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated.” (Barron v.

City Council of Baltimore (1833) 32 U.S. 243, 247 [8 L.Ed. 672, 674], italics added.) Indeed, “common law and civil law” historically “regulate[d] private conduct,” while constitutional law regulated “public or governmental conduct.” (California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 409, italics added.) Thus, “[i]t would . . . be natural to expect that a declaration of rights contained in a state constitution pertains primarily to restrictions upon what the state may do to its citizens.” (Id. at p. 407, fn. omitted.) Based on the historical evidence suggesting that the framers of California’s free speech clause intended to protect against governmental—and not private—encroachments, and the absence of any evidence to the contrary, we see no grounds for reaching a different conclusion. (See Gay Law Students Assn., supra, 24 Cal.3d at p. 468.) Robins does not alter our conclusion.

Contrary to the dissent’s unsupported assertion, Robins did not necessarily reject a state action limitation. It could have “simply broadened the federal definition of ‘state action’ to embrace the peculiar facts of the case.” (Constructing an Alternative, supra, 21 Rutgers L.J. at p. 832.) Over the past 20 years, numerous commentators have explicitly and implicitly recognized such a possibility and noted that Robins left open the issue of whether California’s free speech clause required state action. Indeed, our refusal to abandon the state action requirement is fully consonant with Robins.

Although Robins did not address the state action issue, it did rely heavily on California cases applying the pre-Lloyd decisions of the United States Supreme Court (Robins, supra, 23 Cal.3d at pp. 908-909)—which, as Robins itself recognized, imposed a state action requirement (id. at p. 904). Moreover, the reasoning of Robins bears a “close similarity” to the reasoning of the United States Supreme Court in Logan Plaza. (Pruneyard Shopping Center, supra, 57 Chi.-Kent L.Rev. at p. 389.) Finally, Diamond v.

Bland (1970) 3 Cal.3d 653, 666, fn. 4 [91 Cal.Rptr. 501, All P.2d 733] (Diamond I), one of the decisions cited as persuasive authority in Robins, expressly acknowledged the need for state action in order to trigger constitutional free speech protections. Thus, Robins is wholly consistent with a state action requirement. (See California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 413; Free Speech Access to Shopping Centers, supra, 68 Cal.

L.Rev. at p. 665.) Our recent statement in Gerawan that California’s free speech clause “runs against the world, including private parties as well as governmental actors” does not dictate a contrary result. (Gerawan, supra, 24 Cal.4th at p. 492.) In Gerawan, we considered “whether a marketing order issued by the Secretary of Food and Agriculture of the State of California implicates any right to freedom of speech under either the First Amendment or

article I by compelling funding of generic advertising.” (Id. at p. 476.) Because the presence of a state actor was undisputed, we did not carefully consider whether California’s free speech clause requires state action. Therefore, the language in Gerawan suggesting that our free speech clause protects against private action is nonbinding dictum. (See Santisas v.

Goodin (1998) 17 Cal.4th 599, 620 [71 Cal.Rptr.2d 830, 951 P.2d 399] [A decision “is not authority for everything said in the . . . opinion but only ‘for the points actually involved and actually decided’ ”].) The absence of any analysis renders this dictum unpersuasive. (See People v.

Mendoza (2000) 23 Cal.4th 896, 915 [98 Cal.Rptr.2d 431, 4 P.3d 265] [“ ‘we must view with caution seemingly categorical directives not essential to earlier decisions and be guided by this dictum only to the extent it remains analytically persuasive’ ”].) In any event, the express repudiation of this language by one of the four signatories to Gerawan removes any impediment to reaching a different conclusion based on our careful consideration of the clause’s text and history here. Nor does our decision in Hill to reject a state action limitation on California’s privacy clause compel a different result.

Our decision in Hill was based solely on the official ballot pamphlet—which clearly contemplated that the constitutional right to privacy “may be enforced against private parties . . . .” (Hill, supra, 7 Cal.4th at p. 18; see id. at pp. 16-18, 19.) In contrast, the history behind California’s free speech clause contains no such indication and strongly suggests the contrary. (See ante, at pp. 1024-1028.) Likewise, the existence of a clause in the 1849 Constitution granting wives a separate property right against their husbands does not support the rejection of a state action limitation. (Cal. Const, of 1849, art.

XI, § 14.) Unlike the free speech clause,

section 14 of

article XI was not part of the Declaration of Rights—which historically set forth general principles of governance and established limitations on governments, not private individuals. (See California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 407.) Because the marital property rights provision is more analogous to particularized legislation, literal adherence to the words of that provision may be sufficient.

However, where, as here, the constitutional provision announces a broad principle of government, we necessarily look beyond the text and consider the context and history of that provision. (See, e.g., Gay Law Students Assn., supra, 24 Cal.3d at pp. 468-469; Kruger v.

Wells Fargo Bank (1974) 11 Cal.3d 352, 366-367 [113 Cal.Rptr. 449, 521 P.2d 441, 65 A.L.R.3d 1266].) Thus, the existence of the marital property rights provision does not make irrelevant the fact that California’s free speech clause derives almost verbatim from a clause in the New York Constitution with a state action limitation. (See ante, at pp. 1025-1026.) Finally, including a state action limitation comports with the decisions of most of our sister courts. (See State Constitutions and Protection of Freedom of Expression, supra, 33 U. Kan.

L.Rev. at p. 318 [“The notion that free expression can, and potentially does, mean something slightly different in each state even when provisions read identically is not fully supportable”].) Virtually every state court construing a state constitutional provision with language similar to California’s free speech provision has found a state action requirement.

Although their reasoning varies somewhat, they all explicitly or implicitly invoke the venerable principle that “[s]tate constitutions . . . serve as limitations on the otherwise plenary power of state governments.” (Woodland, supra, 378 N.W.2d at p. 347.) Under this principle, “the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-á-vis each other.” (Southcenter Joint Venture, supra, 780 P.2d at p. 1286, fn. omitted.) Like our sister courts, we recognize that this careful differentiation between government and private conduct has been a hallmark of American constitutional theory since the birth of our nation and serves two important purposes.

First, this demarcation is necessary to preserve private autonomy. “[B]y exempting private action from the reach of the Constitution’s prohibitions, [the state action limitation] stops the Constitution short of preempting individual liberty—of denying to individuals the freedom to make certain choices. . . .

Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution’s demands.” (Tribe, American Constitutional Law (2d ed. 1988) p. 1691.) Second, a state action limitation safeguards the separation of powers embodied in every American constitution by recognizing the limited ability of courts “to accomplish goals which are essentially legislative and political.” (Woodland, supra, 378 N.W.2d at p. 347.) “Without a state action limitation, the courts will possess the same authority as the legislature to limit individual freedoms, but will lack the degree of accountability which should accompany such power.” (Post-Pruneyard Access, supra, 30 Wayne L.Rev. at p. 117.) As a result, absent a state action requirement, “the ‘rule of law’ would approach in Sir Ivor Jennings’ caustic but realistic phrase, ‘rule by the judges alone.’ ” (Harvey, Private Restraint of Expressive Freedom: A Post-Pruneyard Assessment (1989) 69 B.U.

L.Rev. 929, 967, fn. omitted (Private Restraint).) Indeed, “[i]t is not the role of [courts] to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication.” (Cologne, supra, 469 A.2d at p. 1210.) Neither the text of California’s free speech clause nor our case law reveals an intent to depart from these bedrock principles of constitutional jurisprudence. At the same time, the history behind the clause supports the inclusion of a state action limitation and contains nothing even suggesting a contrary possibility.

Accordingly, we hold that

article I,

section 2, subdivision (

a) only protects against state action. (See Gay Law Students Assn., supra, 24 Cal.3d at p. 468.) ni Of course, finding a state action limitation does not end our inquiry. We must still determine the scope of this limitation.

Robins established that state action for purposes of California’s free speech clause is not the same as state action for purposes of the First Amendment. (See Robins, supra, 23 Cal.3d at pp. 905-906 [federal free speech decisions do not preclude a different result under the California Constitution].) In particular, California’s free speech clause, unlike its federal counterpart, runs against certain privately owned shopping centers. (Compare Robins, supra, 23 Cal.3d at p. 910, with Hudgens, supra, 424 U.S. at pp. 519-520 [96 S.Ct. at pp. 1036-1037].) Robins did not, however, define the requisite state action or delineate the scope of free speech rights recognized by the California Constitution.

Today, we take the first step in rectifying this situation and conclude that no state action exists here because the Complex is not freely open to the public. Although Robins did not mention state action and did not clearly define the scope of California’s free speech clause, we can still look to its reasoning for guidance.

To support its holding that the California Constitution protects free speech in a privately owned shopping center, Robins relied heavily on the functional equivalence of the shopping center to a traditional public forum—the “ ‘ “downtown[]”’” or “central business district[].” (Robins, supra, 23 Cal.3d at pp. 910, fn. 5, 907; id. at pp. 910-911.) In finding this functional equivalence, Robins emphasized, among other things, the shopping center’s open and unrestricted invitation to the public to congregate freely. (See id. at pp. 909-910.) Indeed, Robins implicitly exempted “ ‘an individual homeowner’ ” from the purview of California’s free speech clause, presumably because individual homes are not freely and openly accessible to the public. (Id. at p. 910.) In doing so, Robins indicated that the applicability of California’s free speech clause depends in part on the public character of the property.

The importance of the public character of the property in determining the scope of California’s free speech clause derives support from Robins’s reference to earlier California decisions finding a right to free speech on private property. Although all of these cases relied on the First Amendment and the pre-Lloyd decisions of the United States Supreme Court—Marsh v.

Alabama (1946) 326 U.S. 501 [66 S.Ct. 276, 90 L.Ed. 265] (Marsh) and Logan Plaza, supra, 391 U.S. 308 —Robins found many of the principles enunciated in these cases persuasive in interpreting California’s free speech clause. (See Robins, supra, 23 Cal.3d at pp. 908-909.) One such principle emphasized by Robins was the public’s unrestricted access to the privately owned property. (See Robins, at pp. 909-910.) Indeed, the reference in Robins to California cases relying on Marsh and Logan Plaza suggests an implicit approval of the reasoning in these federal decisions. (See Pruneyard Shopping Center, supra, 57 Chi.-Kent L.Rev. at p. 384 [noting that Robins “resurrected] the rationale of Logan [Plaza]”].) Because both Marsh and Logan Plaza partially relied on the public’s unrestricted access in extending the reach of the First Amendment to certain privately owned properties, they bolster the conclusion that private property must be public in character before California’s free speech clause may apply.

For example, Marsh held that a sidewalk in the business district of a privately owned town may be treated as publicly owned property for First Amendment purposes based, in part, on the public’s unrestricted access to the town’s business district. (Marsh, supra, 326 U.S. at pp. 508-509 [66 S.Ct. at pp. 279-280].) “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.” (Id. at p. 506 [66 S.Ct. at p. 278].) Similarly, Logan Plaza held that a shopping mall should be treated as publicly owned for First Amendment purposes because, among other things, the public had “unrestricted access to the mall property.” (Logan Plaza, supra, 391 U.S. at pp. 318, 321, 325 [88 S.Ct. at pp. 1608, 1609-1610, 1612].) In light of the above, we conclude that the actions of a private property owner constitute state action for purposes of California’s free speech clause only if the property is freely and openly accessible to the public.

By establishing this threshold requirement for establishing state action, we largely follow the Court of Appeal decisions construing Robins. For example, our Courts of Appeal have consistently held that privately owned medical centers and their parking lots are not functionally equivalent to a traditional public forum for purposes of California’s free speech clause because, among other things, they are not freely open to the public. (See, e.g., Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1661 [39 Cal.Rptr.2d 189] (Blythe); Allred v.

Harris (1993) 14 Cal.App.4th 1386, 1392-1393 [18 Cal.Rptr.2d 530]; Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1672 [286 Cal.Rptr. 427]; Allred v. Shawley (1991) 232 Cal.App.3d 1489, 1504-1505 [284 Cal.Rptr. 140].) Our lower courts have also suggested that an apartment complex does not resemble a traditional public forum because it “is a place where the public is generally excluded.” (Cox Cable San Diego, Inc. v. Bookspan, Inc. (1987) 195 Cal.App.3d 22, 29 [240 Cal.Rptr. 407].) Here, the Complex is privately owned, and Golden Gateway, the owner, restricts the public’s access to the Complex.

In fact, Golden Gateway carefully limits access to residential tenants and their invitees. Thus, the Complex, unlike the shopping center in Robins, is not the functional equivalent of a traditional public forum. Accordingly, Golden Gateway’s actions do not constitute state action for purposes of California’s free speech, and the Tenants Association has no right to distribute its newsletter pursuant to

article I,

section 2, subdivision (a). In reaching this conclusion, we note that judicial enforcement of injunctive relief does not, by itself, constitute state action for purposes of California’s free speech clause. Although the United States Supreme Court has held that judicial effectuation of a racially restrictive covenant constitutes state action (see Shelley v. Kraemer (1948) 334 U.S. 1, 20 [68 S.Ct. 836, 845-846, 92 L.Ed. 1161, 3 A.L.R.2d 441]), it has largely limited this holding to the facts of those cases (Cole, Federal and State “State Action The Undercritical Embrace of a Hypercriticized Doctrine (1990) 24 Ga.

L.Rev. 327, 353). We therefore decline to extend it to this particular case, where the private property owner merely seeks judicial enforcement of a neutral lease provision. Indeed, a contrary holding would effectively eviscerate the state action requirement because private property owners, for the most part, enforce their property rights through court actions. We also see no basis for conditioning a finding of state action on whether a party invokes California’s free speech clause as a sword or a shield.

Therefore, we decline to follow the dictum in Blythe, supra, 32 Cal.App.4th at page 1665 (“Free speech concerns may be raised as a shield against injunctive relief only because the effectuation of such relief entails government action”). Martin v. City of Struthers (1943) 319 U.S. 141 [63 S.Ct. 862, 87 L.Ed. 1313] and Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817 [97 Cal.Rptr. 777, 489 P.2d 809] are also inapposite.

Although Martin and Van Nuys found the prohibition of door-to-door leafletting to private residences unconstitutional, both cases involved municipal ordinances enacted by a governmental entity. (Martin, at p. 142 [63 S.Ct. at pp. 862-863]; Van Nuys, at p. 819.) Here, the owner of the Complex is a private entity, and its actions do not constitute state action. (See ante, at pp. 1033-1034.) Likewise, defendant’s reliance on Inganamort v. Merker (1977) 148 N.J.Super. 506 [372 A.2d 1168] is misplaced.

Inganamort only held that tenants had the right to distribute noncommercial written material in an apartment building pursuant to their leaseholds under New Jersey law. (Id. at p. 1170.) It did not consider any constitutional right to free speech. Moreover, the New Jersey Supreme Court has declined to impose a state action limitation on the free speech clause of New Jersey’s Constitution. (New Jersey Coalition Against War, supra, 650 A.2d at p. 771.) Therefore, New Jersey decisions are not relevant to our

interpretation of the California Constitution. Finally, Laguna Publishing, supra, 131 Cal.App.3d 816, is distinguishable. In Laguna Publishing, the Court of Appeal found the discriminatory enforcement of a ban on distributing commercial newspapers in a private, gated community unconstitutional. (Id. at p. 844.) In contrast, the instant case does not involve a discriminatory limitation on speech activities. Because this case does not raise the same issue raised in Laguna Publishing, we decline to address it here and leave its resolution for another day.

In closing, we emphasize that our decision today does not give apartment owners carte blanche to stifle tenant speech. Tenants may still have remedies under conventional property law principles. (See Lobsenz & Swanson, The Residential Tenant’s Right to Freedom of Political Expression (1986) 10 U. Puget Sound L.Rev. 1, 45.) Moreover, many statutes and ordinances serve to protect tenants against unreasonable lease provisions and restrictions. (See, e.g., Civ. Code, §§ 1942.5, 1942.6, 1953.) Finally, tenants may always seek a legislative solution tailored to their particular concerns.

Indeed, “[t]he common law and statutes are always sufficient if a state court has the desire and will to protect private rights from private infringement.” (California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 409.) Our decision today merely seeks to avoid “rigid rectitude in stultifying, imposed uniformity” by declining to constitutionalize a private dispute. (Private Restraint, supra, 69 B.U. L.Rev. at p. 969.) Disposition We affirm the judgment of the Court of Appeal. Baxter, J., and Chin, J., concurred. All further undesignated

article references are to the California Constitution unless otherwise indicated.

The First Amendment of the United States Constitution states in relevant part: “Congress shall make no law . . . abridging the freedom of speech . . . .” In holding that high school students had a state constitutional right to solicit signatures in a privately owned shopping center, Robins weighed the students’ right to free speech against the property rights of the owner of the shopping center. (Robins, supra, 23 Cal.3d at pp. 910-911.) Robins did not, however, consider the free speech rights of the owner under the California Constitution. (See Gerawan Farming, Inc. v.

Lyons (2000) 24 Cal.4th 468, 513 [101 Cal.Rptr.2d 470, 12 P.3d 720] (Gerawan) [holding that California’s free speech clause grants “a right to refrain from speaking at all as well as a right to speak freely”].) We express no opinion here as to the role of these rights in ascertaining the scope of free speech rights guaranteed by

article I,

section 2, subdivision (a). (See, e.g., Friedelbaum, Private Property, Public Property: Shopping Centers and Expressive Freedom in the States (1999) 62 Alb.

L.Rev. 1229, 1239 (Private Property, Public Property) [“It is difficult to understand how a threshold issue [state action] of such importance could have been overlooked except for the fervency of both federal and state courts to attain other objectives” (fn. omitted)]; Kelso, California’s Constitutional Right to Privacy (1992) 19 Pepperdine L.Rev. 327, 413 (California’s Right to Privacy) [“the court in Pruneyard does not resolve whether the free speech clause applies to all private conduct which burdens speech or only to private conduct imbued with public elements sufficient to trigger the protections of the Declaration of Rights”]; Pruning Pruneyard, supra, 24 U.C.

Davis L.Rev. at pp. 1090, 1092 [expressing surprise at Robins’s failure to address the state action issue and noting other analytical problems]; Devlin, Constructing an Alternative to “State Action” as a Limit on State Constitutional Rights Guarantees: A Survey, Critique and Proposal (1990) 21 Rutgers L.J. 819, 832 (Constructing an Alternative) [“the [Robins] court was less explicit about its reasons for applying the state constitution . . . [and] did not clarify whether it rejected a state action requirement or simply broadened the federal definition of ‘state action’ to embrace the peculiar facts of the case” (fn. omitted)]; Simon, Independent but Inadequate: State Constitutions and Protection of Freedom of Expression (1985) 33 U.

Kan. L.Rev. 305, 325-336 (State Constitutions and Protection of Freedom of Expression) [“The Pruneyard court did not explain why this [free speech] burden applied to private parties . . . [and] did not attempt to delineate the scope of California’s affirmative right of freedom of expression”]; Comment, State Constitutional Rights of Free Speech on Private Property: The Liberal Loophole (1982/1983) 18 Gonz.

L.Rev. 81, 94 (State Constitutional Rights of Free Speech) [“The California Supreme Court in Robins, however, never expressly rejected this [state action] prerequisite and in fact simply avoided the issue”]; Comment, Transforming the Privately Owned Shopping Center into a Public Forum: Pruneyard Shopping Center v. Robins (1981) 15 U. Rich. L.Rev. 699, 720 [Robins is “confusingly broad”]; Note, Robins v. Pruneyard Shopping Center: Free Speech Access to Shopping Centers Under the California Constitution (1980) 68 Cal.

L.Rev. 641, 645 (Free Speech Access to Shopping Centers) [suggesting that the court was not prepared to address the state action issue in Robins]; but see, e.g., Ragosta, Free Speech Access to Shopping Malls Under State Constitutions: Analysis and Rejection (1986) 37 Syracuse L.Rev. 1, 21 (Free Speech Access to Shopping Malls) [observing that “only California has completely and clearly rejected a state action limitation upon free speech” (fn. omitted)]; Utter, The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment (1985) 8 U.

Puget Sound L.Rev. 157, 169 [“Although the [Robins] court did not expressly state that the California Constitution had no state action requirement, the Washington court has interpreted Robins as impliedly abandoning any state action requirement for the California Constitution” (fn. omitted)].) (See, e.g., Fiesta Mall Venture v. Mecham Recall Committee (1988) 159 Ariz. 371 [767 P.2d 719, 724] (Fiesta Mall Venture) [finding no state constitutional right to free speech in a privately owned shopping center]; Cologne v. Westfarms Assocs. (1984) 192 Conn. 48 [469 A.2d 1201,1210] (Cologne) [same]; Cahill v.

Cobb Place Associates (1999) 271 Ga. 322 [519 S.E.2d 449, 450-451] (Cahill) [same]; Eastwood Mall, Inc. v. Slanco (1994) 68 Ohio St.3d 221 [626 N.E.2d 59, 61-62] (Eastwood Mall) [same]; Woodland v. Michigan Citizens Lobby (1985) 423 Mich. 188 [378 N.W.2d 337, 358 (Woodland) [same]; State v. Wicklund (Minn. 1999) 589 N.W.2d 793, 802 (Wicklund) [same]; S.O.C., Inc. v. Mirage Casino-Hotel (Nev. 2001) 23 P.3d 243, 250 (S.O.C.) [declining to adopt the rationale of Robins]; SHAD Alliance v.

Smith Haven Mall (1985) 66 N.Y.2d 496, 501, fn. 5 [498 N.Y.S.2d 99, 102] (SHAD Alliance) [finding no state constitutional right to free speech in a privately owned shopping center]; Southcenter Joint Venture v. National Democratic Policy Com. (1989) 113 Wash.2d 413 [780 P.2d 1282, 1292] (Southcenter Joint Venture) [same]; Jacobs v. Major (1987) 139 Wis.2d 492 [407 N.W.2d 832, 841] (Jacobs) [same]; but see Bock v. Westminster Mall Co. (Colo. 1991) 819 P.2d 55, 61-63 [finding a state constitutional right to leaflet in a privately owned shopping center]; New Jersey Coalition Against War v. J.M.B.

Realty Corp. (1994) 138 NJ. 326 [650 A.2d 757, 780, 52 A.L.R. 5th 777] (New Jersey Coalition Against War) [same].) Various state courts have also held that a state constitutional provision concerning the right to petition does not protect the solicitation of signatures in a privately owned shopping center. (See, e.g., Stranahan v. Fred Meyer, Inc. (2000) 331 Or. 38 [11 P.3d 228, 243] [finding no state constitutional right to petition in a privately owned shopping center]; Citizens for Ethical Gov. v. Gwinnett (1990) 260 Ga. 245 [392 S.E.2d 8, 9-10] [same]; but see Batchelder v.

Allied Stores Intern., Inc. (1983) 388 Mass. 83 [445 N.E.2d 590, 595, 38 A.L.R.4th 1206] [finding a state constitutional right to solicit signatures in a privately owned shopping center pursuant to a clause in the Massachusetts Constitution concerning freedom and equality of elections].) (See, e.g., Eule & Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse (1998) 45 UCLA L.Rev. 1537; Chemerinsky, More Speech is Better (1998) 45 UCLA L.Rev. 1635; Varat, When May Government Prefer One Source of Private Expression Over Another? (1998) 45 UCLA L.Rev. 1645; Pruning Pruneyard, supra, 24 U.C.

Davis L.Rev. 1073; Friesen, Should California’s Constitutional Guarantees of Individual Rights Apply Against Private Actors? (1989) 17 Hastings Const. L.Q. 111 (Private Actors); Sundby, Is Abandoning State Action Asking Too Much of the Constitution? (1989) 17 Hastings Const. L.Q. 139; Free Speech Access to Shopping Centers, supra, 68 Cal. L.Rev. 641; Free Speech Access to Shopping Malls, supra, 37 Syracuse L.Rev. 1; Cohen, Pruneyard Shopping Center v.

Robins: Past, Present and Future (1981) 57 Chi.-Kent L.Rev. 373 (Pruneyard Shopping Center).) (See 5 Thorpe, The Federal and State Constitutions (1909) pp. 2648, 2654; see also Reiner & Size, The Law Through a Looking Glass: Our Supreme Court and the TJse and Abuse of the California Declaration of Rights (1992) 23 Pacific L.J. 1183, 1197 [“In order to appreciate the intellectual origins of our California Declaration of Rights, it is necessary to understand, first, that it was the 1846 New York Constitution . . . which our delegates were looking at in Monterey in 1849.

Second, the provisions of the 1846 bill of rights for the most part trace their language to the 1821 constitution”].) (See Private Property, Public Property, supra, 62 Alb. L.Rev. at pp. 1238-1239; California’s Right to Privacy, supra, 19 Pepperdine L.Rev. at p. 413; Pruning Pruneyard, supra, 24 U.C. Davis L.Rev. at p. 1090; Constructing an Alternative, supra, 21 Rutgers L.J. at p. 832; A Terrible Beauty, supra, 9 Whittier L.Rev. at p. 731; State Constitutional Rights of Free Speech, supra, 18 Gonz. L.Rev. at pp. 94-95; Free Speech Access to Shopping Centers, supra, 68 Cal.

L.Rev. at p. 645; see also Laguna Publishing, supra, 131 Cal.App.3d at p. 838 [declining to interpret Robins as rejecting a state action limitation].) (See, e.g., Fiesta Mall Venture, supra, 767 P.2d at p. 723 [holding that the state free speech clause did not restrain private conduct]; Cologne, supra, 469 A.2d at p. 1209 [same]; Cahill, supra, 519 S.E.2d at p. 450 [same]; State v. Lacey (Iowa 1991) 465 N.W.2d 537, 540 [same]; Eastwood Mall, supra, 626 N.E.2d at p. 61 [same]; People v.

DiGuida (1992) 152 Ill.2d 104 [178 Ill.Dec. 80, 604 N.E.2d 336, 344] [same]; Woodland, supra, 378 N.W.2d at p. 348 [same]; Wicklund, supra, 589 N.W.2d at p. 801 [same]; S.O.C., supra, 23 P.3d at p. 251 [same]; SHAD Alliance, supra, 488 N.E.2d at p. 1214, fn. 5 [same]; Western Pennsylvania Socialist Workers v. Connecticut General Life Ins.

Co. (1986) 512 Pa. 23 [515 A.2d 1331, 1335] [same]; Southcenter Joint Venture, supra, 780 P.2d at p. 1292 [same]; Jacobs, supra, 407 N.W.2d at p. 841 [same]; but see New Jersey Coalition Against War, supra, 650 A.2d at p. 771 [holding that “the State right of free speech is protected . . . from unreasonably restrictive and oppressive conduct by private entities”].) Contrary to the dissent’s characterization (see dis. opn., post, at pp. 1057-1058), Chief Justice George expressly declines to reach the state action question and expresses no opinion as to whether California’s free speech clause requires state action (see cone, opn., post, at pp. 1041-1042). (See Diamond I, supra, 3 Cal.3d at p. 661 [relying on the First Amendment and Logan Plaza]; In re Lane (1969) 71 Cal.2d 872, 878 [79 Cal.Rptr. 729, 457 P.2d 561] (Lane) [same]; In re Hoffinan (1967) 67 Cal.2d 845, 849-850 [64 Cal.Rptr. 97, 434 P.2d 353] (Hoffinan) [relying on the First Amendment and Marsh]; Schwartz-Torrance Investment Corp. v.

Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766, 771 [40 Cal.Rptr. 233, 394 P.2d 921] (Schwartz-Torrance) [relying on Marsh and other First Amendment precedents].) (See Diamond II, supra, 11 Cal.3d 331, 342-343 (dis. opn. of Mosk, J.) [emphasizing the public’s unrestricted access to the shopping center]; Diamond I, supra, 3 Cal.3d at pp. 659-660 [same]; Lane, supra, 71 Cal.2d at pp. 877-878 [emphasizing the public nature of the sidewalk and store]; Hoffinan, supra, 67 Cal.2d at pp. 847, 851 [emphasizing that the railway station was open to the public and contained a “spacious area” with numerous retail establishments where the public could and would congregate]; Schwartz-Torrance, supra, 61 Cal.2d at pp. 768, 772 [emphasizing the public nature of the shopping center].) Consequently, we do not reach the issue of whether Golden Gateway’s ban on leafletting is a reasonable time, place and manner restriction on free speech. (See, e.g., Linn Valley Lakes Property Owners Assn. v.

Brockway (1992) 250 Kan. 169 [824 P.2d 948, 951] [judicial enforcement of a constitutionally permissible restrictive covenant is not state action]; Midlake on Big Boulder Lake v. Cappuccio (1996) 449 Pa. Super. 124 [673 A.2d 340, 342] [same]; Washington v. Noah (2000) 103 Wash.App. 29 [9 P.3d 858, 870] [judicial enforcement of a voluntary settlement agreement is not state action]; cf. CompuServe Inc. v. Cyber Promotions, Inc. (S.D. Ohio 1997) 962 F.Supp. 1015, 1026 [“the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor”]; Commonwealth v.

Hood (1983) 389 Mass. 581 [452 N.E.2d 188, 193] [judicial enforcement of neutral trespass statute is not state action]; but see Franklin v. White Egret Condominium (Fla.Dist.Ct.App. 1977) 358 So.2d 1084, 1087-1088 [finding enforcement of a restrictive covenant barring children under the age of 12 unconstitutional], affd. White Egret Condominium v. Franklin (Fla. 1979) 379 So.2d 346; West Hill Baptist Church v. Abbate (1969) 24 Ohio Misc. 66 [53 Ohio Ops.2d 107, 261 N.E.2d 196, 200] [judicial enforcement of restrictive covenant excluding houses of worship constitutes state action].)