concurring.
This action for false arrest and compensatory and punitive damages arose out of Stranahan’s attempt to gather signatures for an initiative petition while standing near the door of a Fred Meyer store located at the corner of Southeast 82nd Avenue and Foster Road in Portland. The property on which she stood is in a privately owned Fred Meyer shopping center. Stranahan was arrested for trespass after she was asked to leave the property and refused to do so. A jury awarded Stranahan compensatory and punitive damages.
Central to our resolution of the issues in this appeal is determining whether Stranahan had a right to stand outside a Fred Meyer store on property that is part of a Fred Meyer shopping center to gather signatures for an initiative petition. Decisions of the Oregon Supreme Court make clear that she had a right to do so, subject to reasonable time, place, and manner restrictions. Consequently, I concur only in the result. I write separately to explain why, in my view, the cases on which the lead opinion relies misconstrue the *472relevant Oregon Supreme Court cases. In the process, I will explain why the dissent’s limitation of the right to gather signatures to situations where that activity is within “the scope of the owner’s invitation to the public,” 153 Or App at 483, is misconceived.
The Oregon Supreme Court has held that there is a limited right under Article IV, section 1, of the Oregon Constitution, to enter onto the property of a privately owned shopping center that is open to the public for commercial purposes to gather signatures for initiative petitions. Those who do so must act reasonably, quietly, and peaceably. The right to gather signatures for such petitions is subject to reasonable time, place, and manner restrictions imposed by the owner of the shopping center so that the activity of gathering signatures does not interfere with the shopping center’s commercial activities.
The starting point for understanding Oregon’s approach is Marsh v. Alabama, 326 US 501, 66 S Ct 276, 90 L Ed 265 (1946). In Marsh, the Court confronted the question of when, under the United States Constitution, private property owners may impose restrictions on the exercise of the public’s First Amendment rights of speech and press. The Court adopted the following rule:
“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 (emphasis supplied).
Although the facts of Marsh involved a wholly owned company town, nothing in the Court’s analysis suggested that the rule applies only in cases involving wholly owned company towns. Indeed, in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 US 308, 316-20, 88 S Ct 1601, 20 L Ed 2d 603 (1968), the Court relied on the rule in Marsh when it forbade the owner of a private shopping mall from prohibiting union picketing of a store in the mall. According to the Court, the mall served as the functional equivalent of a town business district, which rendered the mall public for purposes of the First Amendment. Id. at 319.
*473In Lloyd Corporation v. Tanner, 407 US 551, 570, 92 S Ct 2219, 33 L Ed 2d 131 (1972), the Court qualified the ruling in Logan Valley Plaza, holding that, under the First Amendment, Vietnam War protesters were not entitled to distribute handbills in the privately owned Lloyd Center. In that case, the Court focused on the scope of the invitation to the public:
“The invitation is to come to the Center to do business with the tenants. * * * 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.” Id. at 564-65.
Four years later, the Court overruled Logan Valley Plaza in a decision in which it concluded that striking employees of a shoe company warehouse who decided to picket the company’s retail stores were not entitled to any First Amendment protection and that shopping centers are not the functional equivalent of town squares. Hudgens v. NLRB, 424 US 507, 518-21, 96 S Ct 1029, 47 L Ed 2d 196 (1976). Attention then turned to whether the results would be the same under state constitutions.
In Robins v. Pruneyard Shopping Center, 23 Cal 3d 899, 909, 592 P2d 341, 347 (1979), the California Supreme Court held that, under the California constitutional guarantees of free expression, persons soliciting initiative petition signatures have a right to enter a private shopping mall. The California high court explained its decision as follows:
“ It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations would not markedly dilute defendant’s property rights.’ ” Id. at 910-11, 592 P2d at 347-48 (emphasis supplied; citation omitted; brackets in original) (citing Diamond v. Bland, 11 *474Cal 3d 331, 345, 521 P2d 460, 470 (1974) (Mosk, J., dissenting)).
The United States Supreme Court affirmed, notwithstanding its previous decision in Lloyd. PruneYard Shopping Center v. Robins, 447 US 74, 88, 100 S Ct 2035, 64 L Ed 2d 741 (1980). It explained:
“Our reasoning in Lloyd * * * 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. * * * 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.” Id. at 81 (citations omitted).
The Court concluded that permitting persons “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 Takings Clause” because there was no evidence that soliciting signatures on petitions unreasonably impaired the value or use of the owners’ property as a shopping center. Id. at 83. Notably, the “scope of the invitation to the public” reasoning that dominated Lloyd is absent in PruneYard, presumably because the Court recognized that California could take its own approach to free expression issues.1
*475The Oregon Supreme Court entered the debate in Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) (Whiffen I). The question in that case was “whether the owner of a privately owned shopping center open to the public for commercial purposes may obtain a declaration of rights and injunction against persons entering the shopping center to obtain petition signatures.” Id. at 677. Although the parties had framed the issue in constitutional terms under Article I, section 8, the court was able to resolve the case without resort to the Oregon Constitution.2 The court held that the trial court went too far in issuing an injunction restraining persons from gathering signatures for three initiative petitions. Id. at 689. For purposes of understanding the evolution of the rule in Oregon regarding the rights of persons gathering signatures for initiative petitions, Whiffen I is significant for three reasons. First, it declared unambiguously that “laws may only regulate, not entirely bar, entry even on residential property to reach people on matters of social or community interest.” Id. at 684 (emphasis supplied). Second, Whiffen I recognized that the signature-gathering process involves “a very important public interest,” because the signature-gathering process for political petitions is a “fundamental principle” of Oregon government. Id. If signature gatherers are denied access to commercial private property, the public interest will sustain “serious injury.” Id. at 685. Finally, Whiffen I acknowledged that the owners of private property are entitled to impose reasonable time, place and manner restrictions on persons who gather signatures for petitions on private property. Id. at 684-88.
*476The rule that I summarized at the outset, 153 Or App at 472, emerged in Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II). In that case, the Supreme Court endorsed the language in Marsh that commonly is accepted as the rule of that case:
“ ‘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 510 (citing Marsh, 326 US at 506).
The court added:
“Although this court is not bound by that statement by the Supreme Court of the United States in our consideration of the questions presented in this case involving the interpretation and application of provisions of the Oregon Constitution, we nevertheless agree with that statement.” Id. at 510-11.3
The Whiffen II court also declared that Article IV, section 1, confers on persons seeking signatures on initiative petitions a limited right to go onto private property to which the public has been invited. Id. at 511. In reaffirming Oregon’s “long-established tradition of respect for the initiative process,” the court reasoned that
“to prohibit the gathering of signatures on initiative petitions in the common areas of large shopping centers such as the Lloyd Center would ‘impinge on constitutional rights’ conferred on the citizens of this state by the provisions of Article IV, section 1, of the Oregon Constitution. Such *477rights, however, are subject to reasonable time, place, and manner restrictions!.]”at 514.
According to the court, its holding in Whiffen II was “based largely upon acceptance of the rule oí Marsh v. Alabama” and its decision in Whiffen I. Id. The holding also was limited “to the facts of this case, which involve the common areas of a large shopping center such as the Lloyd Center.” Id. (emphasis supplied).
The analysis in Whiffen II focused on where persons seeking petition signatures were entitled to go. Contrary to the dissent’s suggestion, Whiffen II did not endorse the proposition that “the scope of the public’s right to use private property depends on the scope of the invitation to use it.” 153 Or App at 488. Neither did the Supreme Court in Whiffen II base its holding on whether “the public has been invited [to the shopping center] for community assembly.” Id. at 488. As explained above, the rule of Marsh, reflected in Whiffen II, is that “ ‘[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed.’ ” Whiffen II, 315 Or at 510 (emphasis supplied) (citing Marsh, 326 US at 506). The dissent rewrites that rule to mean: The more a property owner, for the advantage of the public, opens up his property for use by the public in general, the more do his rights become circumscribed. That simply is not what either Marsh or Whiffen II says. It is the scope of the invitation to the public to use a shopping center for the property owner’s advantage that matters when determining whether initiative petitioners may exercise a limited right to gather signatures on private property.
As the lead opinion notes, evidence in the record reveals that the Fred Meyer shopping center in this case
“endeavors to provide a wide range of products and services on the premises because it wants its customers to meet all of their consumer needs, and spend all of their consumer dollars, at the shopping center.” 153 Or App at 455.
Fred Meyer has invited the public to its shopping center for its own advantage and in the hope that its customers will give the store all of their shopping dollars. Consequently, under the test of Marsh, as adopted in Whiffen II, Fred *478Meyer’s rights are circumscribed by the constitutional rights of the public to seek signatures on initiative petitions.
The court’s specific task in Whiffen II was to respond to a challenge to the restrictions on petition signature gathering that the Lloyd Center had adopted in the wake of Whiffen I. In evaluating the Lloyd Center’s time, place and manner regulations, the court applied what was by then a familiar test: whether persons seeking signatures on initiative petitions in the common areas of the Lloyd Center, reasonably regulated, would substantially interfere with the Lloyd Center’s commercial enterprise. Whiffen II, 315 Or at 519.
Like Whiffen II, Clackamas Town Center Assoc. v. Wolf, 315 Or 557, 849 P2d 477 (1993), also involved a challenge to time, place and manner restrictions on persons seeking signatures on initiative petitions. The court again recognized the right of those persons to seek signatures in designated common areas of the Clackamas Town Center, subject to reasonable regulations designed to prevent the signature gathering activity from interfering substantially with the commercial enterprise. Id. at 560.
The dissent dismisses the Supreme Court’s most recent pronouncement on the subject, State v. Dameron, 316 Or 448, 853 P2d 1285 (1993), as representing only the opinion of two justices. 153 Or App at 488 n 7. I disagree that Dameron can be dismissed so offhandedly. The issue there was whether the defendant remained unlawfully on the premises of a Fred Meyer shopping center when he stood on the privately owned sidewalk outside an entrance to the store. None of the concurring justices disagreed with the following statement by Justice Van Hoomissen:
“The dissent argues that there is no state constitutional right to gather petition signatures on private property. The dissent is wrong. Whiffen II, [315 Or at 500]; Clackamas Town Center Assoc. [, 315 Or at 557.]” Id. at 462.
In sum, a lead of the Supreme Court in Dameron reaffirmed that the rule of Whiffen II remains the law of Oregon, and a lead of that court agreed that a person seeking signatures for *479an initiative petition did not remain unlawfully on the premises of a Fred Meyer shopping center by standing on the privately owned sidewalk outside one of the entrances to the store.
To reiterate: The Oregon Supreme Court has recognized that, under Article IV, section 1, of the Oregon Constitution, signature gatherers have a limited right to enter onto the property of a privately owned shopping center that is open to the public for commercial purposes to gather signatures for initiative petitions. Those who do so must act reasonably, quietly and peaceably. The right is subject to reasonable time, place and manner restrictions imposed by the owner of the shopping center so that the activity of gathering signatures does not interfere with the shopping center’s commercial activities. Under that rule, there is no question that the lead opinion is correct in concluding that defendant was not entitled to a directed verdict.
The recent case law from this court on which the lead opinion relies to support its conclusion is far narrower than are the Supreme Court’s decisions. In 1990, we stated that:
“It is implicit in Article IV, section 1, that the people must have adequate opportunities to sign the petitions that are necessary for them to act as legislators.” State v. Cargill, 100 Or App 336, 343, 786 P2d 208 (1990), aff'd by an equally divided court 316 Or 492, 851 P2d 1141 (1993).
The Supreme Court agreed with that statement in Whiffen II. 315 Or at 512. However, in Cargill we also held that:
“The Fred Meyer store at which defendants were arrested is a modern replacement for the town square or park. It is open to the public, and citizens are invited to come and congregate on the premises.” 100 Or App at 344 (emphasis supplied).
In that part of the opinion, we did not distinguish between citizens who congregate for commercial or noncommercial purposes. However, in deciding whether signature gatherers for initiative petitions could stand on the sidewalk between the parking lot of the Fred Meyer store at 3805 S.E. Hawthorne in Portland and the store’s main entrance, we *480focused on the nature of the invitation to use the property and concluded, based on the facts of that case, that:
“Fred Meyer’s invitation to the public was broad and for more than just commercial activity. Its premises, by reason of the owner’s invitation, became a forum for assembly by the community.” Id. at 348 (emphasis supplied).
We have continued to apply the tests from Cargill without recognizing that, since the Supreme Court affirmed it by an equally divided court in a nonprecedential decision, that court has developed a different rule, explained above, for protecting the limited rights of signature gatherers under Article IV, section 1. In 1996, for example, we acknowledged Whiffen II for the proposition that
“ ‘prohibiting] the gathering of signatures on initiative petitions in the common areas of large shopping centers such as the Lloyd Center would “impinge on constitutional rights” conferred on the citizens of this state by the provisions of Article IV, section 1, of the Oregon Constitution.’ ” Wabban, Inc., v. Brookhart, 142 Or App 261, 264, 921 P2d 409, rev den 324 Or 395 (1996) (citing Whiffen II, 315 Or at 514).
However, we applied the test of Cargill, not Whiffen II, in analyzing “[t]he scope of noncommercial invitation to [come to HomeBase],” and in concluding that “the sidewalks and parking lots of the San Raphael and Beaverton stores are not the modern-day equivalent of town squares.” Wabban, 142 Or App at 266. Whether a commercial enterprise has the characteristics of a town square is a fact-intensive inquiry, as evidenced by the factors we considered in Wabban. We employed that same methodology in Safeway, Inc. v. Jane Does 1 through 50, 141 Or App 541, 545, 920 P2d 168 (1996), where we identified at least ten “nonexclusive factors” for determining whether a Safeway store was a public forum where members of the public have the right to engage in signature gathering on initiative petitions. The reasoning in those cases fuels the lead opinion’s analysis here. 153 Or App at 452-55. In my view, we should have applied the rule of Whiffen II, described above, in Wabban and Safeway and should do so here. Nonetheless, I agree with the result in the lead opinion in this case.
The dissent dismisses the PruneYard eases because of the failure of the California Supreme Court and the United States Supreme Court to “explain precisely how to identify the sort of‘shopping center’ to which the state constitutional guarantees of free expression apply.” 153 Or App at 485. In my view, that criticism is misplaced. The Court explained:
“Most important, the shopping center by choice of its owner is not limited to the personal use of [the owners]. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand.” PruneYard, 447 US at 87.
Significantly, the dissent’s description of the facts in Whiffen I — and its emphasis on the nature of the Lloyd Center’s invitation to the public — are from this court’s characterization, Lloyd Corporation v. Whiffen, 89 Or App 629, 631, 750 P2d 1157 (1988), affd on other grounds 307 Or 674, 773 P2d 1294 (1989), not the Supreme Court’s. The Supreme Court’s opinion describes the Lloyd Center and then notes that
“[t]he privately owned mall and walkways are designed, decorated, and managed to promote retail business, to please plaintiffs tenants and their customers, clients, and patients, and to encourage prospective customers to come to the Center where they may view and buy merchandise or partake of services.”
Whiffen 1,307 Or at 677-78. The Supreme Court’s description in Whiffen I is devoid of reference to any noncommercial invitation to the public.
Apparently the dissent believes that the Supreme Court’s decision in Huffman and Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993), is relevant to the analysis in this case. The dissent is wrong. In Huffman and Wright, one of the issues was whether the First Amendment to the United States Constitution protected the defendants from an award of punitive damages for trespass on the plaintiffs personal property. The court concluded that the First Amendment does not provide the shield that the defendants claimed, because “[d]evotion of private property to public use requires, at a minimum, the owner’s invitation to the general public to enter the premises.” Id. at 461. The Court’s citation to Marsh in that context, a free speech case, is simply irrelevant in this case. In Whiffen II, the court made clear that it adopted the statement from Marsh because in cases arising under Article IV, section 1, of the Oregon Constitution, the rights of private property owners who use their property for commercial purposes are circumscribed by the constitutional rights of signature gatherers.