http://www.mondaq.com/article.asp?articleid=65204United States: Union Access To Private Property: California Supreme Court Rules Shopping Malls Cannot Prohibit Union Protesters From Urging Boycott Of Stores
27 August 2008
Article by Robert L. Ford, Harry Johnson, George S. Howard Jr. and F. Curt Kirschner Jr.
The California Supreme Court recently ruled in a 4-3 decision that a privately owned shopping mall could not restrict union members from peacefully handbilling on its property in connection with a labor dispute, even though the handbilling was designed to cause a consumer boycott of one of the mall's tenants. Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742 (Cal. 2007). Writing to answer a question certified to the state court by a U.S. Court of Appeals, Justice Carlos R. Moreno said that under the California Constitution, a large shopping mall is a "public forum," and that mall managers cannot prohibit speech based on its content. The Court said that as long as the protesters do not disrupt a business or physically interfere with shoppers, the right of free speech outweighs the mall's right to protect its tenants' profits. The ruling follows a 1979 California Supreme Court decision that found that large shopping malls are public forums in which people's free speech rights are protected by the California Constitution. Robins v. Pruneyard Shopping Center, 592 P.2d 341 (1979), aff'd, 447 U.S. 74 (1980). The United States Court of Appeals for the District of Columbia refused to review the decision, including U.S. Constitutional arguments raised initially on appeal to the Circuit Court, and granted the NLRB's cross-application for enforcement. Fashion Valley Mall, LLC v. NLRB, 524 F.3d 1378 (D.C. Cir. 2008).
The decision in Fashion Valley has potentially wide-range implications for California employers and owners of private property who encourage, invite, or permit members of the general public to come upon their property. Indeed, owners of private property that may be deemed to be a "public forum," such as a large shopping mall, who attempt to restrict or regulate speech on their property based on content, may be in violation of the California Constitution as decided by the California Supreme Court in Fashion Valley.
Facts Giving Rise to the Dispute
The Fashion Valley case arose out of a protest at the Fashion Valley Mall (the "Mall") in October 1998. Pressroom employees of a California newspaper were involved in a labor dispute with their employer, the San Diego Union-Tribune, following the expiration of their collective bargaining agreement. With contract negotiations at a standstill, the union tried to put pressure on the newspaper by distributing leaflets urging a boycott of Robinsons-May, a store that advertised in the paper and had a store in the Mall. Approximately 30 to 40 members of Graphic Communications International Union Local 432-M came to the Mall, stood outside the department store, and handed out leaflets to individuals on the Mall's premises. The union leaflets stated that Robinsons-May advertised in the San Diego Union-Tribune, and urged store customers who believed that employees should be treated "fairly" to contact the newspaper's chief executive officer and not to patronize Robinsons-May.
The Mall maintained a policy that required parties that wished to engage in "expressive activity" on its premises to obtain a permit and required applicants to request the permit five business days prior to the activity. In addition, permits would be issued only if the requesting party agreed to abide by the Mall's rules, including a rule against interfering with the business of a Mall tenant and a prohibition on "
rging, or encouraging in any manner, customers not to purchase the merchandise or services offered by one or more of the stores or merchants in the shopping center." 172 P.3d at 744.
Shortly after the union members began distributing their handbills, Mall officials notified the union protesters that they were trespassing on Fashion Valley property because they failed to obtain a permit from the Mall management company. When they were warned that they would be subject to "civil litigation and/or arrest" if they did not leave the Mall, the union members moved to public property near the Mall entrance.
Thereafter, the union filed an unfair labor practice charge with the National Labor Relations Board ("NLRB"), alleging that by refusing to allow the leafletting in front of Robinsons-May, the Mall owners interfered with the union members' rights, in violation of section 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1).
FULL story at link.
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