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Assume a private club located in a shopping plaza in Austin, Texas and they rent their space from the plaza's owner.

Also assume a member of the public, let's call him Larry, intends to stand outside, X feet from the club's doors, and hand fliers to their members as they leave.

What would be the required parameters, such as how many feet from the entrance could Larry lawfully stand? i.e. How much of the side walk is their premises?

Larry expects the club's staff to "sic" their security guards on him and try to "unlawfully(?)" and potentially forcefully remove him from the premises, but assuming he remains peaceful and does not intrude on their immediate entrance space, who in this situation would have the right to ask him to leave? The club, the owner of the shopping plaza or the police?

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    "I plan to stand outside X feet from their doors..." Is that X spot on public or private land?
    – BlueDogRanch
    Feb 11, 2022 at 1:16
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    Are you planning to be on shopping plaza grounds? Or on publicly owned property nearby?
    – Cullub
    Feb 11, 2022 at 17:01

3 Answers 3

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The club renting space from the shopping center makes no difference; the difference is public vs. private land.

The legal controller of the land you are on - whether the shopping center, the club or private land around the shopping center - can ask you to leave at any time for any reason. There is no wiggle room. A controller is not necessarily the owner - a tenant is a controller as is an emergency service executing legitimate control.

The police are law enforcement; if you don't leave private land by request, their duty is to remove you at the request of the land owner. Private security also has the same function, though their jurisdiction is more limited off their property, as they are private hired by the shopping center or club.

Either would ask you to leave, and if you refuse, you could be arrested for trespassing.

If arrested, the local district or county attorney would have some discretion on prosecuting you for trespassing.

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    Thus the club not being the owner of the land means they would have to first contact their landlord (land owner) to have him ask me to leave?
    – Chameleon
    Feb 11, 2022 at 1:40
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    No. A store in the mall seeing a shoplifter doesn't have to call the landlord first; they call the police or mall security.
    – BlueDogRanch
    Feb 11, 2022 at 1:44
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    @Chameleon this depends on the contract between the landowner and the tenant (club owner/renter). The right to send people away from the property is not tied exclusively to the land owner. For example the security could ask you to leave the property without any involvement of the owner, because that right has been granted to them in their contract. A similar clause could empower the club owner to do so, or to ask the security to send you away. However: IF you leave peacefully after being asked to leave you are doing nothing wrong
    – Hobbamok
    Feb 11, 2022 at 13:06
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    @Chameleon, it does not even depend on a specific prior agreement between club and landlord. Mall security or the police have the authority to ask you to leave and to ensure that you do so. The mall cops in particular, as agents of the property owner, have wide latitude to do so at their discretion, and they are likely to be inclined favorably toward a tenants' request to act on that under the circumstances you describe.
    – John Bollinger
    Feb 11, 2022 at 14:27
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    @Chameleon It doesn't need the property owner to personally make that decision - that's delegated to various people, which of course includes mall security. If mall security ask you to leave and you refuse to, you're automatically trespassing. And it is virtually certain that mall security will do what a tenant of the mall requests, especially when it comes to removing individuals who may be affecting trade for the tenant.
    – Graham
    Feb 11, 2022 at 14:33
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There were 2 cases which determined whether "pamphleteering" on walkways of privately-owned shopping malls was protected as free speech.

Every time I try to search for them, for some reason, I come up against this NY Times opinion piece from 1986 which explains it succinctly.

Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976) determined that private shopping centers were not subject to Federal First Amendment constraints.

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) determined that states enhancing freedom of speech rights by mandating access to walkways of privately-owned malls did not violate the mall owners' property rights under the Federal Constitution.

The result is that it is squarely up to the state whether this is legal or not. Some states have made it legal and some have not.

This memo, prepared for Connecticut General Assembly, reports that the 5 states which have mandated malls to allow pamphleteering on their walkways are "California, Colorado, Massachusetts, New Jersey, and Washington."

Texas is not one of those states.1 Which puts privately-owned walkways of malls in Texas on par with other privately-owned land. The owners have the same protections on that land as the stores have inside of their premises.

If a store owner can kick you out, then the mall owners can use the same means (whatever they maybe legally) to kick you out of the mall if you do not leave when asked.

1 The CGA report is from 2004. I have not been able to find if any other states have introduced similar enhancements to free speech since then. So the safe assumption is that none have (and, more specifically, Texas hasn't).

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Trespass is a civil matter and a landowner, a lawful occupant (e.g. a tenant) or their agent (e.g. a security guard) may use reasonable force to remove a trespasser from their property. In this example, and assuming the sidewalk is on the plaza property, it would fall to the plaza's security guards to deal with.

Note that trespass by itself is not a criminal offence and the police have no power to enforce a trespasser's removal in the specific circumstances given by the OP, let alone arrest them¹.

¹There are some circumstances where trespass is an offence so an arrest may be lawful but I've not reproduced them here as they're off topic.

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  • "it would fall to the plaza's security guards to deal with." Since the plaza does not have security personnel. Would I likely be within my legal rights to stand on the plaza's sidewalk to pamphleteer say in front of their neighboring store fronts and refuse the club's "overreach" of asking me to leave the entire plaza? And in the same sense, would the club and club's security personnel be infringing upon my rights by attempting to remove me by force? I plan to stay peaceful yet would like to know when I am able to "stand my ground" as Texas upholds. I seek and accept zero violence.
    – Chameleon
    Feb 12, 2022 at 3:49
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    @Chameleon (1) the convention here is to offer answers from various jurisdictions which may not always be an exact fit with the OP's jurisdiction. In E&W shopping centres are often required to have their own security as part of their licence to trade (2) Asking for legal advice is off-topic hence my edit to make the question hypothetical.
    – user35069
    Feb 12, 2022 at 8:51

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