Lloyd Corporation v. Whiffen

GILLETTE, J.,

dissenting.

We are confronted with the question whether the private owner of a shopping mall may be required by the terms of certain provisions of the Oregon Constitution to allow persons to solicit signatures on initiative petitions within the common areas of the mall, because such persons *529have a constitutional right to carry on such activity on premises like shopping malls. A majority of this court, united by its single-minded purpose to reach the present result, purports to find such a right in the initiative and referendum provision of the Oregon Constitution. I disagree with that result, and therefore dissent.

In order to assist the reader, I shall summarize my own views at the outset. I would answer the question presented by this case as follows:

1. No right to carry out petitioning activity on private property can be derived from the initiative and referendum provision of the state constitution.

2. If such a right exists, it exists under the “free expression” provision of the state constitution.

3. The constitutional text protects free expression rights from interference by a “law.”

4. Only a government act1 that results in the extin-guishment of free expression rights is such a “law.”

5. No such government act has been shown on the record in this case. Indeed, there has been no showing of any government act at all.

6. Therefore, plaintiff Lloyd Corporation is entitled to an injunction enjoining defendants from carrying out initiative petition signature gathering campaigns on its premises.

FACTUAL AND PROCEDURAL BACKGROUND

Lloyd Center is a retail shopping mall owned by plaintiff and located in Portland. Defendants are individuals who seek to solicit signatures for initiative petitions inside Lloyd Center. Lloyd Center occupies approximately 50 acres. On the inside, it contains walkways that are bordered by store *530fronts and that contain gardens, flower beds, statuary, murals, various other works of art, benches, escalators, stairways and bridges, together with directories and information booths.

From the inception of Lloyd Center’s business activity in 1960 until 1989, plaintiff attempted, without discrimination, to prohibit solicitation, distribution of political leaflets, or petitioning in Lloyd Center. Neither tenants of Lloyd Center nor nontenants were permitted to engage in any such activity on the premises. Plaintiff attempted to limit access to Lloyd Center solely to persons whose purpose was to shop or to do business with plaintiff or its tenants.

In 1989, this court decided Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) (hereafter cited as “Whiffen I”), concluding, on a “subconstitutional” basis, that it was inappropriate to enjoin completely signature-gathering activities in Lloyd Center by means of an injunction that was so broadly worded that it permitted exclusion of anyone who intended to engage in any form of political speech. In response to that decision, plaintiff adopted rules that permitted limited political petitioning activity in Lloyd Center. Defendants have, from time to time, attempted to solicit signatures for initiative petitions in the common areas of Lloyd Center. They wish to continue to do so on a scale greater than that permitted by plaintiffs rules. Plaintiff sought to enjoin defendants from gathering signatures on those privately owned portions of Lloyd Center except where defendants were complying with plaintiffs rules. Following a hearing, the circuit court entered a judgment enjoining defendants from soliciting signatures at Lloyd Center in violation of certain rules that the court fashioned after plaintiffs preexisting rules. The circuit court stated that, in adopting the rules, it was attempting to fashion an order that complied with this court’s decision in Whiffen I, discussed infra.

Defendants appealed, arguing that the trial court’s restrictions that limit the number of petitioners, that require advance notification of an intent to petition, that require petitioners to stay in designated zones, and that ban petitioning altogether during certain holidays and the Rose Festival violate defendants’ individual and collective “right” to gather signatures for initiative petitions. The Court of Appeals *531affirmed, holding that Lloyd Center’s rules “are reasonable and * * * are reasonably related to preventing substantial interference with [Lloyd] Center’s business.” Lloyd Corporation v. Whiffen, 107 Or App 773, 775, 813 P2d 573 (1991).

In affirming the circuit court’s injunction, the Court of Appeals relied on its own decision in Clackamas Town Center Assoc. v. Wolf, 105 Or App 593, 806 P2d 146 (1991), where the court upheld rules with respect to another shopping center that were similar to those in the present case. The holding in Clackamas Town Center Assoc, v. Wolf was based, in turn, in part on this court’s opinion in Whiffen I, supra, and in part on yet another Court of Appeals case, State v. Cargill, 100 Or App 336, 786 P2d 208 (1990). In State v. Cargill, the Court of Appeals held that, under Article IV, section 1, of the Oregon Constitution, discussed infra, individuals have a right to gather signatures for initiative petitions in “areas that have replaced traditional forums for the collection of signatures, so long as there is no substantial interference with the owner’s use of the property for business or other purposes.” 100 Or App at 348.

This court allowed review in the present case, together with petitions for review in Clackamas Town Center Assoc. v. Wolf, supra, State v. Cargill, supra, and State v. Dameron, 101 Or App 237, 789 P2d 707 (1991), to address whether individuals have a right under the Oregon Constitution to seek signatures for initiative petitions on private property and, if so, to attempt to identify under which Oregon constitutional provision such a right exists and under what circumstances (if any) those individuals may be restricted in the exercise of that right.

WHIFFEN I

The majority notes, but devotes little time to, Whif-fen I. More should be said. That case involved essentially the same parties now before this court. In Whiffen I, however, this court stated specifically that it was deciding the case on a “subconstitutional” basis. 307 Or at 680. However, as the following discussion will show, the attempt by the court to put the Whiffen I decision on a subconstitutional footing left it with no footing at all.

*532In Whiffen I, the defendants were persons who had entered Lloyd Center to gather signatures for three initiative petitions. The management of Lloyd Center asked the defendants and others who sought to gather such signatures to stop their signature-gathering activity. The defendants refused and continued to enter Lloyd Center to gather signatures. Lloyd Corporation then sought and obtained an injunction barring the defendants from “ ‘entering * * * [Lloyd Center] to exercise their expressions of opinions or to gather signatures in the initiative and referendum process without plaintiffs permission or consent.’ ” Id. at 677 (emphasis supplied). Before this court, the defendants argued that they had a right under the Oregon Constitution to enter Lloyd Center to gather signatures for initiative petitions. Id. at 679 n 2,687. As noted, this court chose not to decide the constitutional issues. Instead, the court specifically held that “on a subconstitutional level * * * [the] plaintiff [was] not entitled to the broad injunction [that] it sought and received.” Id. at 680 (emphasis supplied).

The court stated in Whiffen I that “[w]hether a judicial decision of a private claim invades constitutional rights depends on whether the remedy fashioned by the court invades constitutional rights.” Ibid, (emphasis supplied). The remedy fashioned by the trial court in Whiffen I was too broad, the court held, under equitable principles, because it enjoined the defendants not only from entering Lloyd Center to gather signatures for initiative petitions, but also from expressing their opinion. The court stated that “[t]he same judicial remedy — for instance, an injunction — may be permissible in one case but not in another.” Id. (emphasis supplied). The court described the effect of the trial court injunction in Whiffen I this way:

“Equity simply will not spread a complete blanket over all political activity. People can and do peaceably and unobtrusively talk politics at [Lloyd] Center without creating a need for the extraordinary remedy of an injunction forbidding people engaged in this type of political activity [— talking politics —] from even venturing onto the property. The trial court went too far in issuing an injunction providing that ‘defendants are hereby restrained and enjoined from entering upon plaintiffs property to exercise their expressions of opinion.’ *■ * * In short, defendants cannot be *533enjoined from entering [Lloyd] Center to express their opinion, so long as they do so reasonably and without interfering with plaintiffs commercial enterprise.”

Id. at 686-87 (emphasis supplied). In the court’s view, the trial court effectively had enjoined the defendants from entering Lloyd Center and expressing any opinion in any manner — even opinions as to the quality of merchandise at a retail store or whether a certain retail store was “politically correct.” For that reason, the “injunction * * * went far beyond its justification.” Id. at 689. So it was that the court considered itself entitled to say that Whiffen I was resolved on equitable, not constitutional, principles.

Had the Whiffen I majority left the matter at that, the opinion would have been — at most — innocuous. But at least some of the court’s discussion in Whiffen I concerned the effect of the trial court’s injunction on the public interest in gathering signatures for initiative petitions. For example, the court stated in dictum that “not all petition signature-gathering activity on [Lloyd Center] can be enjoined.” Id. at 687. The court further stated that the trial court’s remedy of enjoining signature-gathering activity “went too far.” Id. The defendants could gather petitions “if they do so reasonably and peaceably.” Id.

“Moreover, plaintiff is not entitled to an injunction to prohibit peaceful solicitation of signatures in the mall or on its walkways that does not substantially interfere with the commercial activity on the premises. The solicitation of signatures of patrons does not in and of itself constitute substantial interference. The public policy behind the signature-gathering process limits equitable enforcement of plaintiffs preferred total exclusion of signature solicitors.”

Id. None of that discussion was essential to the holding in Whiffen I, however. Moreover, that discussion occurred in the context of a discussion as to why Lloyd Center should not have been granted discretionary, equitable relief. The court said,

“It bears repeating, to avoid misunderstanding, that the only issue which must be decided in this case as to [Lloyd Corporation’s] claim is the scope of equitable intervention, not all legal rights and liabilities that might arise from the acts of either party. An equitable order may be denied, *534limited, or qualified regardless whether a defendant technically is a trespasser * * *. [A]ny residual legal issues may well be left to [Lloyd Corporations’s] remedies at law.”

Id. at 688.

Although the majority in Whiffen I was at pains to keep its decision on a subconstitutional basis, that effort now appears to me to have rendered that opinion essentially meaningless. It is true that, as that opinion asserted, the injunction issued in Whiffen I went too far in that it enjoined any peaceful and nondisruptive expression of opinion at the Lloyd Center, even if that expression were a soto voce exchange between friends. But the court’s criticism of the scope of the trial court’s injunction in Whiffen I was merely abstract and irrelevant unless, after paring down that injunction, the trial court would be under some remaining, affirmative duty to permit the signature-gatherers to exercise to some extent their particular form of political speech, viz., signature-gathering, within Lloyd Center. And, if the trial court had a duty to permit that particular form of expression, that duty must derive from some right belonging to the defendants that trumped Lloyd Center’s right to control both who came onto its private property and what those people did while they were there. The opinion asserted that the petition-gatherers had certain rights, but it did not identify the constitutional (or other) source of those rights. See generally, Whiffen I, 307 Or at 693-95 (Carson, J., dissenting). There was a very good reason for that failure to announce a constitutional justification for the Whiffen I result: There is no satisfactory constitutional justification for that result.

Unlike the trial court remedy in Whiffen I, the trial court remedy in the present case does not affect any activity of defendants beyond the gathering of signatures for initiative petitions. The present case, therefore, directly presents the issue that the Whiffen I court was at pains not to decide, viz., whether gathering signatures for initiative petitions is a right protected under the Oregon Constitution when that signature-gathering occurs on private property like Lloyd Center. Before I examine that question, however, I believe that it is helpful to review in some detail the way in which the question whether there was some constitutional right to free *535expression on even private property has evolved, over time, throughout the country.2

“FUNCTIONAL EQUIVALENCY”

Several courts have held that individuals are entitled to exercise their free expression rights on private property. Those courts have not, however, been able to settle on a single constitutional rationale for that result. What those courts by and large have been able to agree on is the idea that their constitutional outcome (whatever its rationale) is justified because shopping malls and shopping centers have become, as a matter of fact, the “functional equivalent” of town squares or business centers where (they say) political speeches once were given. The Court of Appeals’ opinion in State v. Cargill, supra, the parties’ arguments in the present cases, and the majority’s approach, all take that “functional equivalent” idea as a starting point.

The idea of “functional equivalency” is not new. The first case implying such an analytical tool in resolving conflicts between free expression and private property ownership was Marsh v. Alabama, 326 US 501, 66 S Ct 276, 90 L Ed 265 (1946), decided by the Supreme Court of the United States under the federal constitution almost half a century ago. Marsh, a Jehovah’s Witness, was arrested while handing out religious literature on a sidewalk near the post office in the town of Chickasaw, Alabama. She subsequently was convicted of trespass for having remained on the property of another after being told to leave. The trespass charge was based on the fact that Chickasaw, a suburb ox Mobile, was a “company town,” wholly owned by the Gulf Shipbuilding Corporation. The Supreme Court described the town this way:

“Except for [the fact that the company owns the real estate on which it is situated] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, *536serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. * * * [T]he residents use the business block as their regular shopping center. * * * In short the town and its shoppingdistrict are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Id. at 502-03.

After Marsh’s conviction was affirmed in the Alabama courts, she appealed to the Supreme Court of the United States, asserting that her rights to freedom of religion and the press under the First Amendment had been violated. The Supreme Court agreed.

The Court began by noting that it was clear that, had Chickasaw been an ordinary town, it would have been impermissible for such a town to forbid Marsh to do what she was doing, i.e., the town could not have adopted “an ordinance completely barring the distribution of religious literature.” Id. at 505. The question, the Court said, thus “narrows down to this: Can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town?” Id.

The mere fact of private ownership of the property did not settle the question, the Court ruled. “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 506. Turning its private property into a town placed the owner in a position in which, when the court balanced the owner’s interests against the “preferred position” accorded to First Amendment freedoms, the owner’s rights had to give way. Id. at 509. The Court summarized its rationale this way:

“Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions which affect the *537welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments [to the Constitution of the United States] than there is for curtailing these freedoms with respect to any other citizen.”

Id. at 508-09 (footnotes omitted). Accordingly, the Court reversed Marsh’s conviction. Id. at 510.

Read in context, it is clear that the Court’s decision in Marsh was motivated to a significant degree by the completeness of the private owner’s assumption of the functions, as well as the appearance, of a town. The Court referred specifically to the existence of such things as the sewage treatment plant, the office of a deputy sheriff, and a post office in the town. Later opinions of the Court would emphasize the centrality of that consideration, but the analytical course would be anything but a straight line.

The next pertinent opinion of the Court expanded on the Marsh decision. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 US 308, 88 S Ct 1601, 20 L Ed 2d 603 (1968), involved nonviolent picketing by union members of a large, nonunion supermarket located in a shopping center outside Altoona, Pennsylvania. The picketing was carried out almost entirely in a parcel pickup area immediately adjacent to the store. A state judge enjoined the picketing and ordered the picketers to confine their activities to a set of locations that were over 100 yards from the store. The Supreme Court granted certiorari. It described the issue presented as follows:

“The case squarely presents * * * the question whether Pennsylvania’s generally valid rules against trespass to private property can be applied in these circumstances to bar [the union members] from [the store and the parking lot that adjoined it]. It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. [Citations omitted.] * * * [S]treets, sidewalks, parks, and other similar public places are so historically associated with the exercise *538of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.
<<* * * * *
“This Court has * * * held * * * that under some circumstances property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held.”

Id. at 315-16 (citing Marsh v. Alabama, supra).

Having defined the issue in that way, the Court majority then went on to find that the “similarities between the business block in Marsh and the shopping center in the present case are striking.” Id. at 317. Those similarities led the Court majority to use the phrase that ever since has been at the center of all of the cases in this area:

“We see no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should he constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the ‘business district’ is not under the same ownership. Here the roadways for vehicular movement within the mall and the sidewalks leading from building to building are the functional equivalents of the streets and sidewalks of a normal municipal business district.”

Id. at 319. That functional equivalency, the Court held, called for the same result in Logan Valley that had obtained in Marsh: The picketers were entitled “to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put. "Id. at 319-20. The contrary ruling of the Pennsylvania courts was reversed.

Justice Black, who had authored the majority opinion in Marsh, dissented from the decision in Logan Valley. The Court, he said, had misconstrued Marsh:

“I think it is fair to say that the basis on which the Marsh decision rested was that the property involved encompassed an area that for all practical purposes had been turned into a town; the area had all the attributes of a town and was exactly like any other town in Alabama. I can find very little *539resemblance between the shopping center involved in this case and Chickasaw, Alabama.”

Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, supra, 391 US at 331 (Black, J., dissenting). Justice Black’s view was destined to prevail.

The next pertinent Supreme Court case dealt with the same shopping center involved in this case, Lloyd Center. In Lloyd Corp. v. Tanner, 407 US 551, 92 S Ct 2219, 33 L Ed 2d 131 (1972), several people wished to distribute at the Lloyd Center handbills that publicized a forthcoming rally against the draft and the Vietnam conflict. A federal district court found as fact that the Lloyd Center is “the functional equivalent of a public business district” and that, in light of Marsh and Logan Valley, Lloyd Center could not wholly foreclose persons from coming on its premises and exercising their First Amendment rights. Tanner v. Lloyd Corp., 308 F Supp 128, 130 (D Or 1970). The United States Court of Appeals for the Ninth Circuit agreed. Tanner v. Lloyd Corp., 446 F2d 545, 546 (9th Cir 1971).

On certiorari, the Supreme Court of the United States reversed. The Court held that, in focusing on whether Lloyd Center was “the functional equivalent of a public business district,” the lower courts had missed the mark. The Court explained:

“The courts below considered the critical inquiry to be whether Lloyd Center was ‘the functional equivalent of a public business district.’ This phrase was first used in Logan Valley, but its genesis was in Marsh. * * * The Court [in Marsh] simply held that where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied where exercised in the customary manner on the town’s sidewalks and streets.”

Id. at 561-62 (footnote omitted). The Court then distinguished Logan Valley.

“Logan Valley extended Marsh to a shopping center situation in a different context from the company town setting, but it did so only in a context where the First Amendment activity was related to the shopping center’s operations. * * *
*540“The holding in Logan Valley was not dependent upon the suggestion that the privately owned streets and sidewalks of a business district or a shopping center are the equivalent, for First Amendment purposes, of municipally owned streets and sidewalks. No such expansive reading of the opinion of the Court is necessary or appropriate.”

Id. at 562-63.

The handbill distributors argued that Lloyd Center was required to permit peaceful activities like theirs by virtue of the fact that Lloyd Center was “open to the public.” The Supreme Court specifically rejected that contention:

“There is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.
Cííjí sfi ifi íjí í¡í
“Respondents contend, however, that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. * * *
“The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.”

Id. at 565, 568-69 (footnote omitted).

After its significant expansion of the Marsh rationale in Logan Valley, the Supreme Court clearly was retrenching in its Lloyd Center decision. That retrenchment was completed in Hudgens v. NLRB, 424 US 507, 96 S Ct 1029, 47 L Ed 2d 196 (1976). In that case, striking members of a union picketed a shoe store in a large shopping mall outside of Atlanta, Georgia. The strike was not against the store, but against the shoe company’s warehouse facility, which was not located in the mall. As the case reached the Supreme Court, *541one of the principal issues was whether the union members had a First Amendment right to picket inside the mall. The National Labor Relations Board, relying on Logan Valley, had held that the members did have such a constitutional right.

The Supreme Court disagreed with the NLRB. Although it had not said as much in its Lloyd Center decision, the effect of that decision, the Court majority now stated, had been to overrule the rationale of Logan Valley, particularly that part of the rationale that suggested that a large self-contained shopping center is the functional equivalent of a municipality. Id. at 518-21.

The effect of the foregoing history of the “functional equivalent” rationale was to relegate that label in First Amendment jurisprudence to those few instances, such as the case of a company town, in which a private property owner had thoroughly and generally assumed the duties or characteristics of government. That doctrine generally did not aid persons who wished to pamphleteer, to petition, or otherwise to express themselves politically in shopping malls. It followed that, if there were any remaining legal basis that such persons could assert, it had to be found in state law.

Arguable state law sources were available. The demise of an expansive “functional equivalent” analysis under the First Amendment coincided with the re-emergence of state constitutions as independent sources of individual rights. Thus, it was not long before private parties who wished to exercise their free expression rights on private property began to claim that they had those rights by virtue of the free speech and other protections found in their state constitutions. It is within that spirit of state constitutionalism that the present case arose.

THE PRESENT CASE

The two provisions of the Oregon Constitution on which defendants rely3 as creating a right to gather *542signatures for initiative petitions on privately owned property are Article I, section 8, 4 and Article IV, section l.5 The latter provision is the one on which the majority in this case relies. It also was the basis of the Court of Appeals’ decision in State v. Cargill, supra, 100 Or App at 342-48. I consider it first.6

*543 1. Article IV, section 1

In State v. Cargill, the defendants were seeking signatures on initiative petitions at the main entrance to a Fred Meyer store, a familiar and indigenous form of “one-stop shopping center.” The defendants were arrested for second degree trespass after they refused orders by store management to stop their petition-related activities and to leave. The defendants asserted a constitutional right to do what they were doing. A trial court disagreed and convicted them of trespass. On appeal from their convictions, the Court of Appeals reversed, holding that the store — a Fred Meyer store located at S.E. 39th and Hawthorne streets in Portland — was “a modern replacement for the town square or park,” 100 Or App at 344, and that its premises therefore “became a forum for assembly by the community. ’ ’ Id. at 348. The court concluded that Article TV, section 1, prohibits

“using a criminal prosecution to prevent the people from collecting signatures on initiative and referendum petitions in areas that have replaced traditional forums for the collection of signatures, so long as there is no substantial interference with the owner’s use of the property for business or other purposes.”

Id.

Consistent with Cargill, defendants here also assert — and the majority agrees — that they have a right to gather signatures for initiative petitions under Article IV, section 1. With respect, I submit that both the majority and defendants are in error.

Adopted in 1902, Article IV, section 1, amended the nature and powers of the legislative branch of state government by adding the people themselves to that branch. It required the Secretary of State, in submitting initiatives to the people, to “be guided by the general laws and the act submitting [the] amendment, until legislation shall be especially provided therefor.” Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 441 (1926) (quoting the 1902 amendment). By setting forth the initiative and referendum process in the amendment itself, the people “ ‘put it beyond the power of the legislature to render [the initiative, referendum, and recall *544powers] nugatory by refusing to enact legislation to carry them into effect.’ ” Stevens v. Benson, 50 Or 269, 273, 91 P 577 (1907) (quoting Willis v. Mabon, 48 Minn 140, 150, 50 NW 1110 (1892)). Accord Miles et al. v. Veatch et al., 189 Or 506, 532, 220 P2d 511, 221 P2d 905 (1950).

Because Article IV, section 1, made signature-gathering a part of the legislative function, it seems reasonable to assume that those who voted for the initiative process expected that the right of an individual to gather signatures for initiative petitions would be protected. That does not mean, however, that any such protection is a part of Article IV, section 1. Questions as to who can petition and where that activity can occur are ancillary7 to the purpose of Article IV, section 1, which was to establish the process.

No party to the present proceeding questions the proposition that signature-gathering activity is a form of speech. Whiffen I, supra, 307 Or at 684. As such it is protected by Oregon’s free expression guarantee, Article I, section 8 — one of the most complete protections of free speech to be found in any state constitution. See State v. Henry, 302 Or 510, 732 P2d 9 (1987) (even materials that are pornographic or obscene are protected by Article I, section 8). There is nothing in the text of Article IV, section 1, that would suggest or justify the conclusion that this particular form of speech (collecting initiative signatures) is entitled to even greater constitutional protection than are other forms of speech, particularly other forms of political speech. Neither is there anything of which I am aware in the history of Article IV, section 1, that would suggest or justify the conclusion that the drafters or the persons supporting the measure intended that the initiative and referendum clauses include the right to collect signatures in the common areas of any privately owned business property that was open to the public. In fact, at the time that the initiative amendment was passed in 1902, it was (and it thereafter remained) a misdemeanor to refuse to leave the premises of another after being directed to do so. 1 Codes *545and Statutes of Oregon § 1830 (Bellinger & Cotton 1902). The majority’s reliance on Article TV, section 1, is not justified by its language or its history.

Resort to cases from other jurisdictions does not help the majority, either. I have found no case (other than State v. Cargill, supra) that relied on a state’s constitutional provisions on initiative and referendum as the basis for recognizing a right to petition on privately owned shopping center property. A result somewhat analogous to Cargill was reached in Batchelder v. Allied Stores Int’l, Inc., 388 Mass 83, 445 NE2d 590 (1983), where the Supreme Judicial Court of Massachusetts upheld the right of a candidate for political office to seek signatures in support of his candidacy at a shopping center.8 Because that is the only decision by the highest court of any state that even colorably supports the majority’s novel theory, I shall examine that decision in some detail.

The court in Batchelder relied on Article 9 of the Massachusetts Declaration of Rights, which states:

“All elections ought to be free; and all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.”

Article 9, the majority ruled, did not have a “state action” requirement, i.e., it could be enforced by one private individual against other private individuals. Batchelder v. Allied Stores Int’l, Inc., supra, 388 Mass at 88-89. The effect of the court’s ruling in this regard was to make every decision under Article 9 a “balancing” decision, because no private party acting in a purely private capacity could defend itself on the basis of that private status — private action could be reached under the article. Thus, it was so clear to the majority in *546Batchelder that the shopping center owner’s private property rights had to yield to some degree that the majority did not even pause to consider that issue separately. Instead, the court said:

“The fact that we are dealing with private action on private property and not with public property or with at least direct governmental action is an important consideration. Close attention must be given to the property interests of a mall owner in determining whether an intrusion is reasonable in time, place, and manner.”

Id. at 92. The question, in other words, was not whether the private property owner would lose — the question was by how much the owner would lose. Finding that the candidate’s activities could be carried on without interfering with the shopping center’s primary purpose of merchandising, the court majority held that the owner could require only that the candidate observe reasonable time, place, and manner restrictions. Id. at 93.

Justice Lynch, joined by the Chief Justice and one other Justice, dissented. He made this pertinent point:

“The plaintiff’s argument [which the court majority accepted] that art. 9 entitles him to carry out campaign activities at [the shopping center] because it is ‘perhaps the largest center for the congregation of voters in the Sixth District’ has potentially broad ramifications. It suggests that art. 9 is violated every time the owner of private property which attracts large concentrations of people bars political campaigning on the property. Article 9 does not reach this far. It is a guarantee that no branch of the government will do anything inconsistent with ‘[f]airness and the appearance of fairness’ in the electoral process. [Anderson v. Boston, 360 Mass 178, 195, 380 NE2d 628 (1978)]. It does not ensure that all candidates receive the same level of public exposure. No governmental agency erected any barrier to the plaintiff s campaign. I would find this fact conclusive on the art. 9 issue.”

Id. at 96.

Although I have a difficult time understanding how there could not be a “state action” requirement in Article 9, the construction of the Massachusetts Declaration of Rights *547is the responsibility of the Supreme Judicial Court of Massachusetts, not of this court. But the effects described by the dissenting justices on the Massachusetts court apply equally in other contexts, including the present one, and certainly demonstrate why, so long as there is a choice, requiring governmental action before there is any need to protect individual rights is a sensible way to construe a constitution. In the last analysis, however, any “state action” disagreement is beside the point. As I already have noted, Article IV, section 1, of the Oregon Constitution, is not similar in language, purpose, or history to the Massachusetts provision, and there is nothing in the history of the Oregon provision justifying application of that section under the facts in this case.

In summary, the majority’s reading of Article IV, section 1, has these immediately obvious problems: (1) no language in Article IV, section 1, even suggests (much less specifically states) a scope for that provision that the majority now claims for it; (2) no history of the provision supports the majority’s reading of it; (3) no cases construing Article IV, section 1, support the majority’s reading; and (4) no court in the United States (outside of Oregon) has construed its own initiative provision in a similar way. That lineup should cause even the most heedless to tread softly. The majority, however, does the opposite. There is a result that it intends to reach here and, whatever barriers may be erected by logic, tradition, or precedent, there are the votes to sweep those barriers aside.

The majority’s unprecedented reading of Article IV, section 1, creates problems that the majority chooses not to recognize. Moreover, and even if the majority’s construction of the scope that provision could be defended in the abstract, there is an important “real world” reason not to pursue it.

Unquestionably, signature-gathering for initiative petitions is political speech of a kind that lies at the core of values protected by the First Amendment. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, those core values limit the power of the states to curb political speech. See, e.g., Carey v. Brown, 447 US 455, 100 S Ct 2286, 65 L Ed 2d 263 (1980) (Illinois statute that prohibited all picketing of residences or dwellings, but which *548exempted peaceful labor dispute picketing, held unconstitutional because it denied equal protection by placing premium on one kind of speech). Yet the majority’s reliance on Article IV, section 1, does exactly what the Due Process and Equal Protection Clauses will not permit: It discriminates between different kinds of political speech. See Carey v. Brown, supra.

This proposition is easily illustrated. Suppose that, following the publication of the majority opinion in this case, “A” files for and obtains a ballot title for an initiative petition. The petition would amend the constitution by abolishing Article I, section 8 — Oregon’s stringent protection of free expression. According to the majority, “A” is entitled to set up shop in Lloyd Center and elsewhere to attempt to obtain signatures in support of the petition. “B” opposes the proposed meásure. If “A” were seeking signatures in any normal public forum, such as on a public sidewalk, “B” could set up nearby and, by means of speech, handouts, and placards, urge citizens not to sign “A’s” petition. But, when “A” is operating within Lloyd Center, “B” cannot carry on any countering activity because he — “B” — is not espousing a proposed measure and the right recognized today by the' majority extends only to those who are petitioning.

Such an invidious form of discrimination that favors one form of political speech at the expense of all other forms would not survive Equal Protection Clause scrutiny. See Carey v. Brown, supra. And, even if the question were a close one, I cannot understand how the majority can justify giving a construction to Article IV, section 1, that invites litigation over precisely this kind of scenario.9

The majority’s use of Article IV, section 1, to achieve the public policy result that it so ardently favors cannot be justified by that provision’s text, context, or history. Even if it could be so justified, the impermissibility of granting favored status to one form of political speech over all other forms makes it clear that Article IV, section 1, ought not to be read as the majority now reads it. It follows that the decision of the *549Court of Appeals in the present case was, to the extent that it relied on Article IV, section 1, in error. The majority errs in concluding otherwise.

Article I, section 8 10

The majority rests its decision in this case on Article IV, section 1. Because I believe that the decision cannot be justified on that ground, I am required to consider Article I, section 8. It is essential in any effort at construing a state constitutional provision to begin with the text of the provision. That is especially important here, because Article I, section 8, begins with words that limit its scope.

Article I, section 8, states, “No law shall be passed restraining the free expression of opinion * * (Emphasis supplied.) While private parties may make “law” as between themselves through the device of contracts, “laws” are not “passed” by private parties. They are “passed” by governments. Thus, Article I, section 8, protects private parties from government “laws,” not the actions of other private parties. See State v. Spencer, 289 Or 225, 228, 611 P2d 1147 (1980) (section 8 is a prohibition on the legislative branch). The issues in this case under section 8 thus boil down to two: (1) Is there an attempt by a party to exercise rights of free expression? And (2) is some “law” — i.e., some governmental (as opposed to private) action — restraining those rights in an impermissible way?

The first question need not detain us long. As already noted, there is no question here that defendants were engaged in expressive political activity that is entitled in appropriate circumstances to protection under Article I, section 8. For example, the state could not, under Article I, section 8, have prohibited or punished defendants for their signature-gathering activity if that activity had occurred on *550public property that was devoted to or available for political activity.

It is the second question that is the more difficult one in this case. Defendants’ political expression occurred in Lloyd Center, privately owned property, and the private owners of Lloyd Center seek to enjoin defendants from exercising their political expression in Lloyd Center. As noted, Article I, section 8, is a limitation on government, not on private parties acting privately. Therefore, if plaintiff is to be restrained to some degree by Article I, section 8, it must be because plaintiff’s ability to interfere with defendants’ expression rights arises out of some “law,” as that term is used in section 8.

There is no helpful jurisprudence from Oregon that deals as directly with the question of the relationship between free expression rights and private property as do cases from several other jurisdictions. I therefore turn next to those cases for whatever help they may provide, noting at the outset that virtually every one of those cases has revived, at least for the purposes of discussion, the expansive concept of “functional equivalency” first specifically utilized by the Supreme Court of the United States in the Logan Valley case, supra, but later interred by that Court in Hudgens.

Freedom of expression on private property cases from other jurisdictions may be divided into two categories with respect to “functional equivalency.” In one category are those cases in which the court holds that the particular freedom of expression provision in that court’s state constitution has no “state action” requirement. Cases that proceed on the assumption that their state constitutions’ freedom of expression provisions require no “state action” in order to be used by petitioners, pamphleteers, and others to justify carrying on their activities on private property include: Alderwood Assocs. v. Washington Envir. Council, 96 Wash 2d 230, 635 P2d 108 (1981) (plurality opinion), overruled by Southcenter Joint Venture v. National Dem. Policy Comm., 113 Wash 2d 413, 780 P2d 1282 (1989); State v. Schmid, 84 NJ 535, 423 A2d 615 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 US 100, 102 S Ct 867, 70 L Ed 2d 855 (1982); and Robins v. Pruneyard Shopping Center, 23 Cal 3d 899, 153 Cal Rptr 854, 592 P2d 341 (1979), aff’d, 447 US 74, 100 S Ct *55164 L Ed 2d (1980).11 Those cases are irrelevant to our present inquiry because, as shown, Article I, section 8, does embody a requirement of government action, i.e., a “law,” in order to trigger its provisions.

The second category consists of those cases in which courts have ruled that there must be a “state action” component with respect to the private property (or the private property owner) in question before it is appropriate even to consider whether particular persons’ constitutional rights of expression have been violated. In this category, cases from the highest courts of seven states agree that there is no such “state action” component that is inherent in the private operation of a shopping mall, even if such a mall has become the “functional equivalent” of the traditional town square or business center. Those cases are Charleston Joint Venture v. McPherson, 417 SE2d 544 (SC 1992); Jacobs v. Major, 139 Wis 2d 492, 407 NW2d 832 (1987); Western Pa. Soc. Workers. v. Connecticut Gen. Life Ins., 512 Pa 23, 515 A2d 1331 (1986); SHAD Alliance v. Smith Haven Mall, 66 NY2d 496, 498 NYS2d 99, 488 NE2d 1211 (1985); Woodland v. Michigan Citizens Lobby, 423 Mich 188, 378 NW2d 337 (1985); Cologne v. Westfarm Assocs., 192 Conn 48, 469 A2d 1201 (1984); and State v. Felmet, 302 NC 173, 273 SE2d 708 (1981).12

*552I agree with the cases from Connecticut, New York, Michigan, Wisconsin, and elsewhere to the extent that they hold that there is nothing inherent in running a large, successful shopping mall that turns such an activity into a form of governmental action that then must make some accommodation for rights of free expression. It may be true that such shopping malls have, as a practical matter, replaced other forms of business areas in many cities and towns. Or it may be that, as has occurred in Portland, shopping malls have spurred cities to reexamine their downtown areas to compete effectively through improved transit and revitalized shopping facilities. It may also be true that economic change creates new challenges for those with political messages who wish to reach a wide audience. It certainly is true that, somewhere between the archetypal situation of a company town, such as that involved in Marsh v. Alabama, supra, and the equally archetypal situation of a corner “mom and pop” grocery and sundries store, there is a line that separates those private ventures on private property that must respect freedom of expression guarantees from those that need not do so. I simply note here that the foregoing generalities concerning the social and economic realities resulting from the success of shopping malls do not, ipso facto, place either the creation or the operation of a particular shopping mall on the government action side of the line. To fall on the government side, there must be something more — ‘ ‘state action” or, as it is put in our constitution, a “law.”

In contrast to the seven cases just described, I have found only one case that both accepts my premise concerning the necessity for a “law” and still suggests, albeit in dictum, that a mall can be required to permit expressive activity on its premises. That case is Bock v. Westminster Mall Co., 819 P2d 55 (Colo 1991). In Bock, two persons who were members of a political association called “The Pledge of Resistance” sought permission to distribute pamphlets and to solicit protest signatures in the common areas inside a large mall. The mall owner, consistent with its policy to prohibit all such activity, denied permission. Litigation followed.

The Supreme Court of Colorado determined two issues. First, it determined that, before a party would be entitled to exercise the party’s right to freedom of expression *553under the Colorado Constitution13 inside a privately owned mall, some form of government action or involvement in the mall would have to be shown. Id. at 60. The court stated:

“Where governmental entities or public monies are shown by the facts to subsidize, approve of, or encourage private interests and such private interests happen also to restrict the liberty to speak and to dissent, this court may find that such private restrictions run afoul of the protective scope of Article II, Section 10. It is possible for interests, otherwise private, to bear such a close relationship with governmental entities or public monies that such interests are affected with a public interest. Moreover, with or without the benefit of that relationship, a private project may develop and operate in a manner such that it performs a virtual public function.”

Ibid.

The Colorado court then went on to find that there was sufficient interaction between the government and the mall owner to make the mall aplace that was “affected with a' public interest.” Ibid. The court described the factors that led it to that conclusion:

“Our finding that governmental involvement exists here is not based on any single factor. Nevertheless, we find significant the City’s two million dollar purchase, financed through the sale of municipal bonds, of improvements which the [mall owner] made to adjacent streets and drainage systems. * * *
“Also significant is the fact that the City operates a police substation in the Mall from which the police respond to complaints throughout the City. The [mall owner] provides the space rent free to the City and, in effect, the Mall thus provides a municipal service.* * *
“Finally, there is a highly visible governmental presence in the Mall. The Army, Navy and the Marine Corps maintain recruiting offices in the Mall. The Jefferson County Clerk conducts voter registration drives in the Mall, reminding citizens of their political duties. In sum, the financial participation of the City in the Mall’s progress, the arrangements *554with the City police substation, and the active presence of other governmental agencies in the common areas of the Mall, constitute governmental involvement in the operation of the Mall.”

Id. at 61-62.

The foregoing analytical approach, focusing as it does on whether there is sufficient governmental involvement in the creation or operation of the mall to justify treating the common areas of the mall as being a public forum, may be an appropriate approach. I agree with the Colorado court that certain of the activities that it describes seriously compromise any claim that the mall owner might make to being a purely private operation. For example, it is difficult to see how it would be possible for the mall owner to permit operation of a rent-free police substation on the premises and, at the same time, deny to any person the right to demonstrate in a peaceful and nondisruptive way inside the mall against some controversial act of the officers who used the substation. Similar considerations would apply to the recruiting offices. However, the Colorado court’s analysis would not aid defendants in the present case. None of the criteria used by the Colorado court are shown on this record to apply to the Lloyd Center.

Although the foregoing analysis was a sufficient basis for its holding, the Colorado court unfortunately did not stop there. Instead, it also made the following statement:

“We are also persuaded that the Mall functions as the equivalent of a downtown business district. * * * Walking through or sitting in [the Mall’s] open areas each year are many thousands of the public who otherwise engage, no doubt, in conversations on all subjects, including the political. Thus, the historical connection between the marketplace of ideas and the market for goods and services is not severed because goods and services today are bought and sold within the confines of a modem mall. To conclude otherwise would be to allow the vagaries of contemporary urban architecture and planning, or the lack thereof, to prevail over our valued tradition of free speech.”

Id. at 62. I already have explained why I think this sort of analysis is wrong. Business success does not turn purely private acts into governmental ones. In light of the factors *555that it already had enumerated, one is left to wonder whether the Bock court would have made the last quoted statement without the presence of the factors already enumerated. It is, at most, a statement wholly unnecessary to the court’s holding, i.e., a dictum.

As discussion of the Bock case indicates, if any kind of symmetry is to be maintained in the scope of Article I, section 8, there must be a legally recognizable connection between a “law” and a particular piece of private property before the constitutional restraints on interference with free expression can be applied to the owners of that private property. It is not enough to justify applying constitutional limitations to the use of private property simply by arguing that the private property is a popular meeting place to which the public is invited. If that were enough, private property owners would, in effect, be penalized for their entrepreneurial success in putting their property to a business use that attracts many customers. The Oregon Constitution should not now be rewritten to punish successful private entrepreneurship.

Does the record in the present case show a connection between government and plaintiffs creation or operation of their shopping center such that efforts by plaintiff to exclude defendants from Lloyd Center constitute a “law * * * restraining free expression”? I already have indicated that the kinds of factors on which the Colorado court relied in Bock v. Westminster Mall Co., supra, are not present. It may be that still other kinds of factors also could demonstrate the necessary connection between government and private property, but none suggests itself here. I would hold that, on this record, defendants have not been shown to have a right, under Article I, section 8, of the Oregon Constitution, to enter into plaintiffs shopping mall and carry on petition-gathering activity in the mall’s common areas.

Four members of this court favor an outcome to this litigation that requires Lloyd Center to permit petitioning activity on its premises. A proper analysis of the pertinent Oregon constitutional text will not support that outcome, as I have shown. Undeterred, the four either rewrite or ignore the constitution to achieve that outcome anyway. This is — and *556will be seen to be — an arrogation of power, not an exercise in jurisprudence. I respectfully dissent.

Carson, C. J., and Peterson, J., join in this dissenting opinion.

In referring to “government,” I speak of all three traditional branches of government, including the judiciary. The judicial branch can make “law” in some circumstances, such as when it announces common law doctrine. But a court’s resolution of a dispute between private parties does not necessarily constitute the making of a “law.” I reject the argument that might be derived from cases like Shelley v. Kraemer, 334 US 1, 68 SCt 836, 92LEd 1161 (1948), to the effect that any decision by a state court constitutes the “passage” of a “law” for purposes of state constitutional rules.

My discussion now proceeds along non-traditional lines, in that I first discuss federal constitutional cases before turning to cases decided under the laws of this and other states. I take such an approach in this case because the federal case discussion is pertinent as history, not precedent.

At least one parly and several amici mention Article I, section 26, of the Oregon Constitution, as a basis for guaranteeing to individual petitioners a right to gather signatures in shopping centers. Article I, section 26, provides:

“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances (sic).”

*542However, no party or amici has set forth an analysis under Article I, section 26, that is different from that presented under Article I, section 8, and Article IV, section 1, in the present case. The majority does not address Article I, section 26.1 therefore shall not do so, either.

Article I, section 8, of the Oregon Constitution, provides:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

Article IV, section 1, of the Oregon Constitution, provides:

“(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.
“(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.
“(b) An initiative law may be proposed only by a petition signed by a number of qualified voters equal to six percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.
“(c) An initiative amendment to the Constitution may be proposed only by a petition signed by a number of qualified voters equal to eight percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.
“(d) An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.
“(e) An initiative petition shall be filed not less than four months before the election at which the proposed law or amendment to the Constitution is to be voted upon.”

My discussion now. turns to state constitutional provisions, without resort to subconstitutional sources, for two reasons. First, as the previous discussion of Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989), supra 315 Or at 531-34, demonstrates, that case itself suffered from a failure to recognize the necessity of constitutional underpinnings for the defendants in that case (like the defendants in the present case) to have some kind of right to exercise political expression on private property. Second, I have found no statute or other subconstitutional source of law that is pertinent. This is regrettable. A legislative solution to the present problem might very well be more satisfactory and certainly would be more systematic than any solution that this court is able, to fashion on a case-by-case basis. This topic deserves legislative consideration.

The majority quarrels with the use of the word “ancillary.” The majority says, “[WJhere persons may seek signatures on initiative petitions is not ‘ancillary’ or ‘subordinate’ to the purposes of Article IV, section 1, but is essential to its purpose.” 315 Or at 511-12. (Emphasis in original.) Saying it doesn’t make it so. The majority cites nothing in the history of or the case law concerning Article IV, section 1, to justify its conclusion. Indeed, it does not even deign to discuss those topics.

My research also has disclosed two petitioning cases that hold that there is no automatic constitutional right to carry on petitioning activities on privately owned shopping center property. See People v. Diguida, 152 Ill 2d 104, 604 NE2d 336 (1992) (signatures for candidate’s petition); Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz 371, 767 P2d 719 (Ct App 1988) (signatures for recall petition); see also Alderwood Assocs. v. Washington Envir. Council, 96 Wash 2d 230, 635 P2d 108 (1981), overruled on other grounds in Southcenter Joint Venture v. National Dem. Policy Comm.,113 Wash 2d 413, 780 P2d 1282 (1989) (rejecting, by an 8-1 majority, the suggestion that the initiative and referendum provision in that state’s constitution added anything to the state constitution’s free speech provisions).

The majority’s response to the foregoing concern, 315 Or at 514-15, resembles the wonderful non-response of the Matthew Harrison Brady character under direct examination in a trial scene from “Inherit the Wind”: “I do not think about things that... I do not think about!” Jerome Lawrence & Robert E. Lee, Inherit the Wind, Act II, scene 2. Indeed.

In State v. Cargill, supra, the Court of Appeals did not address whether the defendants in that case had a right under Article I, section 8, of the Oregon Constitution, to enter a large store’s premises to gather signatures for initiative petitions. That court did hold in its earlier decision in Lloyd Corporation v. Whiffen, 89 Or App 629, 750 P2d 1157 (1988), that Article I, section 8, guaranteed individuals the right to free expression in Lloyd Center, subject to reasonable time, place and manner restrictions. As noted, however, this court in Whiffen I did not address that holding on review, instead resolving the case on a “subconstitutional” basis.

The constitutional provisions at issue in both Robins v. Pruneyard Shopping Center, 23 Cal 3rd 899, 153 Cal Rptr 854, 592 P2d 341 (1979), aff’d, 447 US 74, 100 S Ct 2035, 64 L Ed 2d 741 (1980) and State v. Schmid, 84 NJ 535, 423 A2d 615 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 US 100, 102 S Ct 867, 70 L Ed 2d 855 (1982), did contain references to a “law,” but both states’ high courts essentially read “law” out of their free expression provisions on policy grounds. I do not consider myself (or this court) to be at liberty to play as fast and loose with constitutional language as some of our sister courts apparently do.

With one exception, each of the foregoing cases develops its thesis as to why “functional equivalency” is not the same as “state action” in some detail. In the interest of the readers’ eyesight, I shall not go through those analyses here, beyond noting that I agree with their general thrust. The one exception prompts this footnote: In State v. Felmet, 302 NC 173, 273 SE 2d 708 (1981), the Supreme Court of North Carolina was asked to give to its constitutional protection of freedom of expression a broader interpretation than that given the First Amendment by the Supreme Court of the United States. The North Carolina court’s entire analysis of that idea was as follows:

“This Court could, under the Supremacy Clause, interpret our State Constitution to protect conduct similar to that of defendant without infringing on any federally protected property right of the owners of private shopping centers. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). However, we are not so disposed.”

State v. Felmet, supra, 302 NC at 178, 273 SE2d at 712.

Article II, section 10, of the Colorado Constitution provides in part:

“No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty * *