Union Access To Private Property: California Supreme Court Rules Shopping Malls Cannot Prohibit Union Protesters From Urging Boycott Of Stores

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


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 "[u]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


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).

NLRB Found Ban Unlawful; Fashion Valley Appeals to

D.C. Circuit

An NLRB administrative law judge found that the union

members were engaged in peaceful handbilling to publicize their

primary labor dispute with the Union-Tribune and that

such activity was a lawful secondary activity under the NLRA.

Fashion Valley appealed the administrative law judge's

decision to the NLRB. The Board concluded that the Mall

violated the statute both by maintaining the anti-boycott rule

and by enforcing the rule by requiring application for a permit

that forbids lawful activity, and held that "California

law permits the exercise of speech and petitioning in private

shopping centers, subject to reasonable time, place, and manner

rules adopted by the property owner."...

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