The San Francisco Chronicle
Tuesday 25 December 2007
San Francisco - Labor unions and political protesters are protected by freedom of speech when they leaflet shoppers at malls in California and urge them to boycott stores, a sharply divided state Supreme Court ruled Monday.
The 4-3 decision was based on the court's landmark 1979 ruling that allowed political speech and activity at large shopping centers. In that ruling, which involved signature-gathering on political petitions at the PruneYard Shopping Center in Campbell, the court said a shopping mall was the modern equivalent of a town square or community meeting place, where people come to exchange ideas as well as spend money.
The U.S. Supreme Court had ruled in 1976 that the First Amendment to the U.S. Constitution protects free speech only against restrictions imposed by the government and not by private property owners. But the 1979 ruling, based on independent rights under the California Constitution, remains the law in the state.
In Monday's case, lawyers for a San Diego shopping center argued that it had the right to protect its tenants' economic interests by prohibiting handbills that advocate boycotts of any of its stores. Attorneys for Fashion Valley Mall, a complex of more than 200 upscale retailers, said the freedom of speech recognized by the court in 1979 didn't cover statements that attack a shopping center's purpose for existing.
But a majority of the court said its rulings even before 1979 required shopping centers to allow peaceful picketing on the premises, even though it might interfere with profits. As long as the protesters don't disrupt a business or physically interfere with shoppers, the court said, the right of free speech outweighs the mall's right to protect its tenants' profits.
"Urging customers to boycott a store lies at the core of the right to free speech," said Justice Carlos Moreno in the majority opinion. He said the mall's rules were not aimed at preventing disruption but simply prohibited certain speech based on its content.
The dissenters, led by Justice Ming Chin, said the court should not only uphold the shopping center's ban on consumer boycotts but also overturn its 1979 ruling allowing peaceful political activity at shopping malls.
"Private property should be treated as private property, not as a public free speech zone," said Chin, joined by Justices Marvin Baxter and Carol Corrigan. He noted that courts in nearly all other states that have considered the same issue have disagreed with the California ruling.
At the very least, Chin said, the court should allow owners of a mall to forbid advocacy of a store boycott, which "contradicts the very purpose of a shopping center's existence."
The case arose when members of a Teamsters Union affiliate that was involved in a labor dispute with the San Diego Union-Tribune handed out leaflets in October 1998 outside the Robinsons-May department store at the Fashion Valley Mall. The leaflets asked shoppers to call the newspaper's chief executive, noting that the store advertised in the Union-Tribune.
The leafleters were expelled by the shopping center manager because they hadn't filled out a permit application promising to abide by the mall's rules, including a ban on advocating boycotts. Lawyers in the case said most regional shopping centers in California have similar rules, which will have to be changed because of Monday's ruling.
The ruling doesn't directly affect other restrictions on protests at shopping centers, including rules enforced at many malls that limit or ban picketing and leafleting during the holiday season, and restrict the location of protesters at other times. But David Rosenfeld, a lawyer for the union in Monday's case, said he would argue that courts should take a closer look at such restrictions in light of the decision.
W.W. Lines, a lawyer for the San Diego shopping center, said limits on the time and place of political activity at malls have been upheld by other courts and shouldn't be affected by Monday's ruling. "I think businesses can live with this," he said.
The case is Fashion Valley Mall vs. National Labor Relations Board, S144753. The ruling is available at http://links.sfgate.com/ZBXC.