Metropolitan News-Enterprise

 

Wednesday, December 26, 2007

 

Page 1

 

Court: Constitution Guarantees Right to Urge Store Boycott at Mall

Narrow Majority Rejects Dissentís Call to Overrule Pruneyard, Says Shopping Plaza Cannot Ban Speech Based on Content

 

By STEVEN M. ELLIS, Staff Writer

 

Californiaís Constitution guarantees the right to urge customers in a shopping mall to boycott one of the mallís stores, the California Supreme Court ruled Monday.

In a sharply divided opinion, the court held 4-3 that Art. I, Sec. 2 of the California Constitution protects the right to free speech in a shopping mall, even though the federal Constitution does not, and ruled that a San Diego mallís rule prohibiting persons from urging a boycott violated the Constitution because it banned speech because of its content, rather than merely regulating its time, place, or manner.

Writing for the majority, Justice Carlos R. Moreno said:

ďA shopping mall is a public forum in which persons may reasonably exercise their right to free speech guaranteed by article I, section 2 of the California Constitution. Shopping malls may enact and enforce reasonable regulations of the time, place and manner of such free expression to assure that these activities do not interfere with the normal business operations of the mall, but they may not prohibit certain types of speech based upon its content, such as prohibiting speech that urges a boycott of one or more of the stores in the mall.Ē

Leafleting Prohibited

The matter arose after Graphic Communications International Union Local 432-M filed a charge before the National Labor Relations Board alleging that the owners of the Fashion Valley Mall had refused to permit its members, who were employees of the Union-Tribune Publishing Company, to leaflet in front of a Robinsons-May department store in the mall.† The employees had distributed leaflets to customers entering and leaving the store, stating that it advertised in the Union-Tribune, with whom the union was engaged in a labor dispute.

Although the employees conducted their activity peacefully and courteously without disrupting or hindering customers, mall officials accused them of trespassing because they had not obtained a permit, and threatened them with litigation and arrest if they did not leave.†

Under the mallís rules, persons who desired to engage in expressive activity at the mall were required to apply for a permit five business days in advance and agree to abide by the mallís rules, including a prohibition on urging any boycott of merchants in the mall.

Compliance Futile

The union complained to the National Labor Relations Board, and an administrative law judge ruled that the mall had violated the National Labor Relations Act because the union was attempting to engage in a lawful consumer boycott, and any attempt to comply with the mallís application process would have been futile.

The mall appealed to United States Court of Appeals for the District of Columbia Circuit, who requested that the California Supreme Court determine whether the mallís policy violated the California Constitution.

Moreno was joined in his opinion by Chief Justice Ronald M. George, and Justices Joyce L. Kennard and Kathryn M.Werdegar.

However, Justice Ming W. Chin wrote in dissent that the court had incorrectly based its ruling on its prior decision in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, where it held that the California Constitution grants broader rights to free expression than the U.S. Constitution, and that a shopping mall is a public forum in which persons may exercise their right to free speech.

ďThe time has come for us to forthrightly overrule Pruneyard and rejoin the rest of the nation in this important area of the law,Ē Chin wrote.† ďPrivate property should be treated as private property, not as a public free speech zone.Ē

Chin was joined in his dissent by Justices Marvin R. Baxter and Carol A. Corrigan.

The case is Fashion Valley Mall, LLC v. National Labor Relations Board (Graphic Communications International Union, Local 432-M), 2007 S.O.S. 7516.

 

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