Thursday's decision in Salazar v. Majestic Realty Co., by California Court of Appeal Justice Helen Bendix, joined by Justices Frances Rothschild and Gregory Weingart, dealt with plaintiff's attempt to leaflet at large privately owned shopping centers. The California Supreme Court has (rightly or wrongly) held that the California Constitution protects such a right; so the court ended up applying pretty much the same rule (to oversimplify slightly) as to leafletting on public sidewalks. And the court held that plaintiffs' leaflets are indeed protected, reversing a trial court's decision to the contrary:
We disagree with the trial court that plaintiff's leafletting constitutes the unauthorized provision of legal advice such that it is not entitled to constitutional protection.
Plaintiff's first leaflet stated, inter alia, "Men are not legally and financially responsible for supporting a child that a woman chooses to have," and invited men to attend plaintiff's meetings to "Learn the truth. Learn your rights." His second leaflet described his meetings, stating, "I give a [one-hour] pre[sen]ta[t]ion in Riverside to teach men that they do have the r[e]pr[o]ductive right to choo[s]e too and why they are not r[e]sponsible for supporting a woman's r[e]pr[o]ductive d[ec]i[s]ion to have a child."
The trial court cited Howard v. Superior Court (Cal. App. 1975), which states, "The constitutional protection for free speech does not extend to the delivery of legal or medical or financial advice by persons not licensed to give such advice." The court also cited Business and Professions Code section 6126, which provides, "Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active licensee of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor …." The court found plaintiff's statement that men were not financially responsible for the care of their children was not only legal advice but also inaccurate legal advice and cited Penal Code section 270, which criminalizes the failure to provide necessary care to one's child. In light of these authorities, the court concluded plaintiff's leaflets are not constitutionally protected.
Plaintiff's leaflets cannot fairly be construed as offering legal advice. The dictionary definition of "advice" is a "recommendation regarding a decision or course of conduct." Although arguably the leaflets state plaintiff's interpretation of the law, the only recommendation the leaflets make is that the recipient attend plaintiff's presentation and/or contact him for further information. The leaflets do not advise recipients to cease paying child support. Rather, they present plaintiff's views on the law and invite the recipient to learn more at plaintiff's meetings….
