Case: Fashion Valley Mall, LLC v. National Labor Relations Board, Case No. S144753 (Cal. Sup. Ct. 12/24/07)

The One Sentence Summary: Although shopping centers may enforce reasonable time, place, and manner rules to ensure that free speech activities do not interfere with normal business operations, they may not enforce content-based restrictions such as prohibiting speech that urges a boycott of one or more stores in the center.

What They Were Fighting About: Members of a union representing pressroom employees of a San Diego general circulation newspaper distributed leaflets to customers entering and leaving Robinsons-May department store at Fashion Valley Mall in San Diego. The union and the newspaper had been unable to reach a new collective bargaining agreement. The leaflets alleged that the newspaper treated its employees unfairly and stated that the department store advertised in the newspaper. Mall officials required the leafleting to stop because the union members had not obtained a permit to engage in expressive activity at the mall. Under mall rule 5.6.2, a permit applicant must agree to refrain from conduct urging customers not to purchase merchandise or services offered by one or more stores or merchants in the mall. After the union filed charges with the National Labor Relations Board (“NLRB”), an administrative law judge ruled that the union members were engaged in a lawful boycott of the department store and ordered the mall to cease and desist from prohibiting the leafleting. The NLRB affirmed that order, finding that California law permits speech and petitioning activity in private shopping centers subject to reasonable time, place, and manner rules and that rule 5.6.2 was an impermissible content-based restriction. On appeal, the United States Court of Appeals for the District of Columbia Circuit requested that the California Supreme Court decide whether under California law the mall could maintain and enforce rule 5.6.2 against the union.

Court Holdings: The California Supreme Court granted the request for review and held, in a 4-3 decision, that the right to free speech under the California Constitution includes the right to urge customers in a private shopping mall to boycott one or more of the mall’s stores.

  • In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979), the California Supreme Court held that the California Constitution protects speech and petitioning in shopping centers that are privately owned (even though the First Amendment to the United States Constitution does not), subject to reasonable time, place, and manner rules.
  • In the present case, the court rejected the mall’s argument that its rule prohibiting speech that advocates a boycott of a mall store or merchant is a reasonable regulation to prevent interference with normal business operations.
  • The court found that the mall’s rule is not content-neutral because it prohibits speech urging a boycott while permitting speech that does not, precluding an entire category of speech. The court concluded that the mall’s rule could not be justified by any legitimate concerns that are unrelated to content. Peaceful leafleting that urges a boycott in a mall does not by its nature create disruptive congestion, nor is it inherently intrusive or coercive like some solicitations for monetary donations that may be prohibited. Leaflets urging a boycott may persuade customers not to patronize a store, but the mall’s concern over the effectiveness of the speech’s message is not a proper basis for prohibiting it.
  • Applying strict scrutiny, the court concluded that the mall’s interest in maximizing the profits of its merchants was not compelling compared to the union’s right to free speech.
  • The three dissenting justices advocated the overruling of Pruneyard (which has been rejected by most other jurisdictions) on the grounds that private property should not be treated as a free speech zone. Moreover, they opined that even under Pruneyard, free speech activity must not be incompatible with the normal use of the property, and that speech urging a boycott of businesses at a shopping center is incompatible with the center’s purpose of enabling its tenants to do business. “We should not compel shopping center owners to permit activity that interferes with the purpose for the center’s existence.”