The California Supreme Court expanded free speech rights and handed organized labor a significant victory in its recent decision,Fashion Valley Mall v. NLRB (Graphics Communications Int'l Union, Local 432-M) (December 24, 2007, S144753). In the context of a union leafleting campaign during a labor dispute, the Supreme Court held in a divided, 4 to 3 decision, that the right to free speech under the California Constitution "includes the right to urge customers in a shopping mall to boycott one of the stores in the mall."
Almost 30 years ago, the state's high court extended the constitutional right of free speech to "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." Robins v. Pruneyard Shopping Center(1979) 23 Cal.3d 899, 910. The Court in Pruneyard also held, however, that shopping centers may adopt "reasonable regulations . . . to assure that these activities do not interfere with normal business operations". Id. at 911. In Fashion Valley, the Court took this decision one step further by declaring that the free speech right extends to urging a boycott of tenant stores on the premises of a privately owned shopping mall, even though as a practical matter, such activity may well interfere with the store's business and fundamental purpose.
California Law Before Fashion Valley
A violation of the constitutional right to free speech historically has required some form of governmental intrusion, or "state action." By the early 1970s, however, the Supreme Courts of the United States and California recognized a constitutional right to free speech in privately-owned shopping centers. Food Employees v. Logan Plaza (1968) 391 U.S. 308;Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union (1964) 61 Cal.2d 766; Diamond v. Bland (1970) 3 Cal.3d 653 (Diamond I). The courts in these cases reasoned that a shopping mall had become the functional equivalent of a traditional public forum, and therefore speech within them should be protected in the same manner as speech on public sidewalks or in the public square.
Eventually, the U.S. Supreme Court reversed its prior decisions and held that the actions of a private owner of a shopping center do not constitute state action. Lloyd Corp. v. Tanner(1972) 407 U.S. 551 (handbilling in mall to protest Vietnam War not protected speech); Hudgens v. NLRB (1976) 424 U.S. 507 (striking union members had no First Amendment right to enter the mall to picket a store). At first California followed the federal lead, in no small part because its prior decisions relied upon discredited federal precedents. Diamond v. Bland (1974) 11 Cal.3d 331 (Diamond II). Five years later, however, after a change in the make-up of the California Supreme Court, the Court reversed course yet again and issued the Pruneyarddecision.
In Pruneyard, the high court held "that soliciting at a shopping center of signatures for petition to the government is an activity protected by the California Constitution." 23 Cal.3d at p. 902. The majority opinion cited with approval its Schwartz-Torrance decision, which held that a union may not be enjoined from peaceful picketing of an employer's business located in a privately owned shopping center. To explain its departure from federal law, the Court pointed to language differences in the free speech protections within the state and federal constitutions, but did not analyze further the import of those distinctions.1 Significantly though, the court made clear that the owners of shopping centers could impose reasonable time, place and manner restrictions "to assure that these activities do not interfere with normal business operations." Pruneyard, supra, 23 Cal.3d at p. 910-911 (emphasis added).
The Fashion Valley Decision
In October 1998, members of the Graphic Communications International Union Local 432-M (Union) began distributing leaflets to customers outside the Robinson-May store in the Fashion Valley Mall in San Diego. The Union represented employees in a labor dispute with the San Diego Union-Tribune. The leaflets stated that Robinson-May advertised with the newspaper and described how unfairly the paper treated its employees. Mall officials arrived and told the Union members they were trespassing because they had not obtained a permit from the mall to engage in the activity. Mall regulations for obtaining a permit included a rule which prohibited the urging or encouraging of a boycott of any of the mall's stores. Rather than apply for a permit, the Union filed an unfair labor practice charge against the mall with the National Labor Relations Board (NLRB).
The NLRB held that the mall's permit rule violated Section 8(a)(1) of the National Labor Relations Act because it was a content-based restriction, the purpose and effect of which was to shield the mall's tenants from lawful consumer boycott handbilling. The mall appealed this decision to the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit observed that "no California court has squarely decided whether a shopping center may lawfully ban from its premises speech urging the public to boycott a tenant." Therefore, it asked the California Supreme Court to decide whether the mall's permit rule was lawful.
In reaffirming Pruneyard, the California Supreme Court dismissed the mall's argument that, sinceSchwartz-Torrance and In re Lane (1969) 71 Cal.2d 872 (union had a right to distribute handbills on privately owned sidewalk outside a stand-alone grocery store) were based on discredited First Amendment jurisprudence, the Court could not rely on these older decisions. The court also cited Diamond Ifor the proposition that "citizens have a strengthened interest, not a diminished interest, in speech that presents a grievance against a particular business in a privately owned shopping center, including speech that advocates a boycott."
The court reasoned that the mall's rule was not content neutral because it barred an entire category of speech - that which advocates a boycott. The court also found that rule could not be justified by legitimate business concerns unrelated to its content because a peaceful boycott would not cause congestion or promote fraud or duress. While the mall argued that encouraging a boycott would interfere with its stores' normal business operations, the Court responded that "[l]isteners' reaction to speech is not a content-neutral basis for regulation," citing Forsyth County v. Nationalist Movement (1992) 505 U.S. 123, 134.
Having found that the mall's permit rule was a content-based restriction on speech requiring "strict scrutiny," the Court concluded that the rule could not withstand that test. The strict scrutiny test requires that any restriction on speech be necessary to serve a compelling state interest and narrowly drawn to achieve that end. The Court found that "[t]he Mall's purpose to maximize profits of its merchants is not compelling compared to the Union's right to free expression." Therefore, the Court held the mall could not enforce its anti-boycotting permit rule against the Union.
The Dissent
In a strong dissenting opinion, Justice Chin encouraged the Court to join the "judicial mainstream" by overruling Pruneyard. He observed that, sincePruneyard was decided, "it has received scant support and overwhelming rejection around the country." Justice Chin noted that 14 states with free speech provisions in their constitutions almost identical to California's constitution have soundly rejectedPruneyard. Of the four states that did adopt a similar approach to Pruneyard (Colorado, Massachusetts, New Jersey and Washington), he observed that all of them are now "generally retreating."
Justice Chin argued that even if the Court was unwilling to overrule Pruneyard, the Fashion Valley case was distinguishable from it. The Pruneyard and Diamond I decisions compelled shopping center owners to allow individuals to collect signatures for a petition to the government, an activity that did not conflict with the center's business. Justice Chin argued that a boycott, on the other hand, must certainly be seen as interfering with the normal business operations of the shopping center stores who are the object of that boycott.
The Impact of Fashion Valley
Since Pruneyard, decisions of the California Court of Appeal have held that free speech rights do not extend to expressive activities on the private sidewalks or private parking lots of stand-alone stores. Albertson's, Inc. v. Young(2003) 107 Cal.App.4th 106; Trader Joe's Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425. The Fashion Valley decision confirms that shopping centers remain a different constitutional creature altogether. Unlike stand-alone "box stores" or other commercial private property, shopping centers in the state must remain open to the public for general speech purposes, subject only to reasonable time, place and manner restrictions. Under Fashion Valley, it appears unions now will have free rein to urge primary or secondary boycotts of stores inside privately owned shopping centers. Under the Moscone Act, Code of Civil Procedure §527.3, such activities cannot be enjoined unless the store owner or mall can prove the union engaged in fraud, violence, breach of peace, disorderly conduct or unlawful blocking of access to, or egress from, the premises. Cal. Code Civ. Proc. § 527.3, subds. (b) and (d).
Footnotes
1. The U.S. Supreme Court later affirmed Pruneyard to the extent that federal law did not prevent California from providing greater speech rights than those protected under the federal Constitution. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
