concurring.
This case is about limiting by subconstitutional law the scope of separate state constitutional provisions guaranteeing freedom of speech and the initiative process. It is equally about limits on the law’s protection of private property open to the public. I concur in the majority opinion of Justice Tongue, but write separately to emphasize that our state constitution’s protection of political speech provides a firm foundation for that decision in the context of gathering signatures on an initiative petition. Those two protected values of constitutional magnitude are in conjunction or alignment.
Today the court protects private property from any significant loss related to its commercial purpose and also accords some protection to the constitutionally granted right to initiate legislation.
Collecting initiative signatures is an exercise of political speech directed at change in governmental policies.1 As such, it may not be prevented outright in the common areas open to the public in this state by invoking the laws or powers of the government to absolutely prohibit speech-related activities of the initiative petitioners. This remains so even though title to the common areas of a place open to the public are held in private ownership.2
This same matter was previously before this court in Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) (Whiffen I). The present decision is a continuation of the same case. It was established in Whiffen I that:
*5211) as a matter of “subeonstitutional” law, gathering initiative signatures is a fundamental exercise of free speech rights described in our state constitution, 307 Or at 680, 684-85;
2) as a matter of fact, exercise of that speech is significantly burdened if that speech is excluded from the common public areas of the Lloyd Center, id. at 685, and
3) as a matter of fact, effective exercise of that separate Oregon constitutional right to change the law through the initiative process is also significantly burdened by exclusion of individual signature-gatherers from the common public areas of places where large numbers of voters congregate. Id.
At our previous consideration of this matter, this court “lifted” a trial court injunction preventing petitioning at Lloyd Center, and then remanded this case to the trial court. Private property rights were protected, even though recognized to be in conflict with the exercise of both constitutional rights mentioned above. The court adjusted the conflict between property rights and initiative petitioning speech by directions to the trial court to fashion time, place, and manner restrictions reasonably regulating exercise of the petitioning speech rights. By implication, only the common areas of the center open to the public were under discussion, not other areas within the walls of individual stores or other commercial establishments where commerce was directly being transacted. A majority decided that a blanket injunction prohibiting all gathering of initiative signatures was not lawful but that a court might establish or enforce reasonable time, place, and manner restrictions on signature gathering activity.
On remand, Lloyd Corporation adopted rules for its common areas open to the public that, among other things, permit Lloyd to exercise prior restraint to exclude signature gatherers based on the content of the initiative petition that they espouse, require advance notice and individual personal application by signature gatherers, and limit petitioning to a small number of individuals and locations in the common areas at any given time. Lloyd Corporation v. Whiffen, 107 Or *522App 773, 813 P2d 573 (1991) (Whiffen II). Plaintiff Lloyd Corporation now seeks to enforce rules that it has adopted, including rules that would permit Lloyd Corporation to establish prior restraints on the subject matter of petitions brought on the premises and to regulate which persons are permitted to bring any petition at all on a given day.3 The final trial court response on remand was an injunction enforcing the rules adopted by Lloyd.
On appeal, plaintiff argues that there is not any state law that prohibits collection of signatures on private property, therefore, no state action or law is involved and, without state action, the constitutional protection for speech in conjunction with the initiative process cannot be invoked. There-foré, plaintiffs argument continues, it is entitled to prevent the admittedly political speech involved in initiative signature collection by invoking state law in the form of a prohibitory injunction of a state court.
Plaintiff shopping center owner contends that the state, having granted zoning and other permits that allowed plaintiffs to construct a commercial enterprise on public streets and private land formerly dedicated to other uses,4 now also must use the power of state law to prohibit defendants’ exercise of any right of petition-related political speech on the common areas of the public place so created.
Whether the state may protect that specie of private property by preventing speech, assembly, and petitioning rights thereon is the issue in this and the three related cases now before this court.
*523In the other three cases, respectively, shopping center management seek to strictly limit signature gathering in a mall’s common areas, Clackamas Town Center Assoc. v. Wolf, 315 Or 557, 849 P2d 477 (1993); or to apply sanctions of state criminal law to prevent signature gatherers from requesting signatures on the sidewalk adjacent to an outdoor parking lot serving several businesses, State v. Dameron, 101 Or App 237, 789 P2d 707 (1990), rev allowed 312 Or 554, 822 P2d 713 (1991); or on a sidewalk located between an outdoor parking lot serving a single department store and that store, State v. Cargill, 100 Or App 336, 786 P2d 208, rev allowed 310 Or 133, 794 P2d 794 (1990). The property owner in Dameron and Cargill seeks to use state criminal law and its penalties to prevent the speech represented by initiative signature collection.5
Collecting initiative signatures is deemed political speech nationwide. In Meyer v. Grant, 486 US 414, 424, 108 S Ct 1886, 100 L Ed 2d 425 (1988), the Supreme Court stated:
“Appellants argue that even if the statute imposes some limitation on First Amendment expression, the burden is permissible because other avenues of expression remain open to appellees and because the State has the authority to impose limitations on the scope of the state-created right to legislate by initiative. Neither of these arguments persuades us that the burden imposed on appellees’ First Amendment rights is acceptable.
“That appellees remain free to employ other means to disseminate their ideas does not take their speech through petition circulators outside the bounds of First Amendment protection. Colorado’s prohibition of paid petition circula-tors restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication. That it leaves open “more burdensome” avenues of communication, does not relieve its burden on First Amendment expression. * * * The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.” (Citations omitted.)
*524See Delgado v. Smith, 861 F2d 1489, 1495 (11th Cir 1988) cert den 492 US 918 (1989) (initiative petition process is “core political speech’ ’ protected by the First Amendment); State ex rel Labedz v. Beermann, 229 Neb 657, 428 NW2d 608, 613 (1988) (“relators have a First Amendment interest in the initiative process”).
As noted above, much has already been decided on this subject in Oregon. In Whiffen I, supra, 307 Or at 684-85, the majority noted that:
“Here, the public interest is well defined. Defendants seek to collect signatures to initiate public lawmaking. Or Const, Art IV, § 1. Oregon Revised Statutes chapter 250 is wholly devoted to the process of filing petitions and obtaining signatures. * * *
<(* * if; if: sj:
“Before addressing plaintiffs allegations, we evaluate the injunction’s effect on the public interest. 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. * * *
“* * * 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. ’ ’
This court also opined that:
“Whether a judicial decision of a private claim invades constitutional rights depends on whether the remedy fashioned by the court invades constitutional rights. * * * In this case, we conclude on a subconstitutional level that plaintiff is not entitled to the broad injunction it sought and received.” Id. at 680.
Here the owner’s effort to prevent solicitation of signatures in the common areas of Lloyd Center would still *525leave open “more burdensome” avenues for collecting signatures. But, the availability of other avenues does not diminish the degree of protection afforded signature gathering in itself and as political speech. Whiffen I, supra, 307 Or at 685, 687; Meyer v. Grant, supra, 486 US at 424.
State recognition of signature gathering as political speech and protection of it from governmental suppression at the behest of private owners of premises open to the public, has been granted not only by this court ‘ ‘ subconstitutionally’ ’ in Whiffen, when it refused to enjoin the signature gathering activity as trespass, but also by the Supreme Court of the United States. In PruneYard Shopping Center v. Robins, 447 US 74, 81, 83-84, 100 S Ct 2035, 64 L Ed 2d 741 (1980), that Court explained:
“Our reasoning in Lloyd [Lloyd Corp., Ltd. v. Tanner, 407 US 551, 92 S Ct 2219, 33 L Ed 2d 131 (1972)], 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. Cooper v. California, 386 US 58, 62, 17 L Ed 2d 730, 87 S Ct 788 (1967). See also 407 US, at 569-570, 33 L Ed 2d 131, 92 S Ct 2219. 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. * * *
‡ ÍJÍ sji iji
“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. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme *526Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the common areas of the shopping center. In these circumstances, the fact that they may have ‘physically invaded’ appellants’ property cannot be viewed as determinative.”
The Court rejected the claim that state support for signature gathering activity as expressive conduct amounted to a taking of their private property.
“[H]ere appellants have failed to demonstrate that the ‘right to exclude others’ is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a‘taking.’ ” Id., 447 US at 84, 64 LEd2d at 754.
This court has unanimously permitted commercial speech and speakers to intrude into privately owned residential property. In Hillsboro v. Purcell, 306 Or 547, 555, 761 P2d 510 (1988), this court held.that a city’s effort to place an absolute prior restraint on entry of private residential property for commercial purposes was overbroad, because “selling is a form of communicative endeavor that includes speech and may involve goods that are protected expression.” Recognition of a constitutional basis for protection of uninvited commercial speech on private residential property has recently been repeated, even where the commercial speech was reproduced by machine. Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993). In these cases, legislative acts were struck down because of speech guarantees, where those acts restricted the intrusion whether or not the residential owner individually objected to it.
Notwithstanding that Whiffen I “subconstitu-tionally” established initiative petitioning activity under Article IV, section 1, of the Oregon Constitution as protected speech under Article I, section 8, there are those who argue in this continuation of the Whiffen case that speech guarantees cannot apply to aid those gathering signatures in furtherance of Article IV, section 1, of the Oregon Constitution.
First, it is said that there is no “state action” because no state law has been passed that prohibits the exercise of either petitioning or speech associated with it. Thus, it is said *527that, because the government is not restricting or prohibiting the petitioning speech, there is no protection of it at all as against an operator of privately owned premises that are open to the public.
Therefore, as this strain of constitutional interpretation goes, the government’s courts must absolutely enjoin the activity, its police must arrest the initiative petitioners, and its prosecutors must seek to convict them of criminal trespass for failure to leave premises open to the public when directed by an operator of such premises to do so.
Proponents of that restrictive interpretation point to criminal trespass laws for support. But they overlook the substantial changes made legislatively in 1971 to require a “lawful” direction to leave. Compare former ORS 164.460 (1967) with ORS 164.205 and 164.245 (Oregon Laws 1971, ch 743, §§ 135 and 139).6
This legislative addition to the elements that must be proved clearly implies that not all directions to leave a premises open to the public are lawful in the sense required to support governmental prosecution and punishment of those who may remain on such premises on some lawful basis.
Leaving aside injunctions and criminal laws as constituting state action and assuming that they are not part of this case, there is other state action involving the government in creation of prime petitioning locations such as common areas of shopping centers. All private property is subject to zoning and other land use regulations. But few landowners receive the required governmental approval to intensively develop land. Governmental approvals included not only favorable change-of-land-use decisions but also privatization of formerly public spaces. These acts confer substantial governmental benefits on the operators of common areas open to the public. These governmental involvements constitute sufficient state action to make state constitutional protections apply to the common areas.
*528The dissent rejects the majority holding as violative of federal equal protection, relying only on a “See” citation to Carey v. Brown, 447 US 455, 100 S Ct 2286, 65 L Ed 2d 263 (1980).
But, even assuming that Carey controls, petitioning would not be prohibited; it instead would be permitted. Carey struck down an Illinois statute, permitting picketing on sidewalks in residential areas to express opinions in only three situations, but otherwise prohibiting such picketing in public places located in residential areas. Several members of a civil rights organization were convicted under the statute for picketing the mayor of Chicago’s home over busing to achieve racial integration of schools.
Because some picketing was permitted and other picketing was prohibited, and because the disparate treatment was based on the differences in the categories of messages conveyed by the pickets, the state statute was declared unconstitutional because that statute discriminated imper-missibly between various subjects of speech and that decision was affirmed by the Supreme Court of the United States in Carey. 447 US 455. The result in Carey was to permit picketing for all subjects of speech, not to prohibit it. If applicable, and if applied to the shopping center case now before this court, Carey would not prohibit petitioning in the common areas of the Lloyd Center, rather, it would affirm permissibility of there engaging in petitioning and other subjects of speech.7
Article IV, section l(2)(a) and (b), in part provide:
“The people reserve to themselves the initiative power, which is to propose laws and amendments to the constitution * * * and enact or reject them independently of the Legislative Assembly. An initiative * * * may be proposed only by a petition signed by the [required] number of qualified voters.”
ORS 164.205(4], relating to criminal trespass laws, provides:
“ ‘Open to the public’ means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required.”
Subsection 6 of that statute provides:
“ ‘Premises’ includes any building and any real property, whether privately or publicly owned.”
Lloyd’s rules, as adopted, included a declaration that “these rules shall in no way he construed or interpreted as the owners’ acquiescence in political petitioning at Lloyd Center in violation of our rights.” Other constitutional provisions below are also cited by the parties. Article I, section 26, of the Oregon Constitution in part provides:
“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner * *
Article I, section 8, provides in part:
“No law shall be passed restraining the free expression of opinion * * * on any subject whatever * *
Lloyd Corporation v. Whiffen, 307 Or 674, 677-78, 773 P2d 1294 (1989) describes the center.
It is the state and not merely the property owner who decides whether to bring a criminal prosecution and it is the state, not the property owner, who prosecutes the criminal action.
The provisions of ORS 164.205, set out in note 2, supra, apply. ORS 164.245 requires that the remaining be unlawful and that in turn required that a direction to leave be lawful.
This federal equal protection issue was developed by the dissent and was not the thrust of Lloyd Corporation’s contentions, which were aimed at excluding all speech not consented to by the corporation. As the dissent states, 315 Or at 547:
“Unquestionably, signature-gathering for initiative petitions is political speech of a kind that lies at the core of values protected by the First Amendment.”