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Shopping mall cannot prevent newspaper employees from urging boycott of mall tenants
December 27, 2007 by Ross Runkel at LawMemo
Fashion Valley Mall v. NLRB (California 12/24/2007) (4-3)
The Supreme Court of California granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. The court held that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.
Union members employed by a newspaper distributed leaflets to customers entering and leaving the store of a tenant in a shopping mall. (This was to protest the tenant running ads in the newspaper, which the union claimed treated its employees unfairly.) Mall officials required the union members to leave because they did not have a Mall-issued permit. In order to obtain a permit, an applicant must agree not to urge a boycott of any shopping mall tenant.
The union filed unfair labor practice charges with the National Labor Relations Board (NLRB), and the Board ruled that the Mall violated Section 8(a)(1) by maintaining its permit requirement, which had the purpose and effect of shielding tenants from otherwise lawful consumer boycott handbilling. The Mall petitioned the DC Circuit for review, and the DC Circuit asked the California Supreme Court to clarify the following question: "Under California law, may [the Mall] maintain and enforce against the Union its [permit rule]?" The California court answered in the negative, thus assuring that the DC Circuit will uphold the NLRB decision.
The California court noted that the California constitution grants greater protection for free speech than the federal constitution does. A private shopping mall "can be a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks." Robins v. Pruneyard Shopping Center, 23 Cal3d 899, affirmed in Pruneyard Shopping Center v. Robins, 447 US 74 (1980).
After reviewing Pruneyard and other intervening decisions, the court held that the shopping mall's rule was viewpoint-neutral but not content-neutral "because it prohibits speech that urges a boycott while permitting speech that does not," and therefore is subject to strict scrutiny. The mall's purpose of maximizing tenants' profits "is not compelling compared to the Union's right to free expression."
The DISSENT argued that Pruneyard was wrong and has been rejected overwhelmingly by other jurisdictions. Even if Pruneyard is not overruled, it can be distinguished on the ground that the activity involved in this case is not compatible with the normal use of the property, which is to allow the "businesses on the premises to do business."
Earlier report on this case: Workplace Prof Blog: California Shopping Malls are Public Forums
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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