Thursday, March 3, 2011
Court of Appeal Says Pet Store Protesters Were Discriminated Against
By a MetNews Staff Writer
The owner of a West Los Angeles shopping mall could not prohibit animal welfare activists from protesting within aural and visual range of a pet store accused of selling puppies bred in inhumane conditions, this district’s Court of Appeal ruled yesterday.
Div. Two explained that the Westside Pavilion could not constitutionally limit non-labor related expressive activity within the mall to designated areas and days and so the Best Friends Animal Society was entitled to injunctive relief.
Best Friends sought permission from the mall’s owners to hold weekend protests in front of the Barkworks Pup & Stuff pet store. The mall’s owner agreed to the protests, but only within two designated areas, and not on certain “blackout” dates, pursuant to its regulations for use of the mall’s common areas.
These regulations, however, did not impose similar limitations on expressive activity by mall employees or labor organizations involved in labor disputes.
Best Friends eventually sued the mall owners for declaratory and injunctive relief based on the theory that the restrictions being imposed on its members’ protesting activity were unconstitutional.
Los Angeles Superior Court Judge Linda K. Lefkowitz denied Best Friends’ motion for a preliminary injunction barring the mall owner from enforcing its rules, finding Union of Needletrades Etc. Employees v. Superior Court (1997) 56 Cal.App.4th 996 permits a privately owned shopping center to limit expressive activity on its property and grant labor activity preferential treatment.
Writing for the appellate court, Justice Judith M. Ashmann-Gerst concluded H-CHH Associates. v. Citizens for Representative Government, (1987) 193 Cal.App.3d 1193, and Snatchko v. Westfield LLC, (2010) 187 Cal.App.4th 469, were more persuasive authority for evaluating the validity of limitations on free speech in malls.
“H-CHH and Snatchko are consistent with federal principles of free speech because they allow people engaged in expressive activity to access desired areas in shopping malls unless excluding them would pass the appropriate level of scrutiny” while “UNITE is inconsistent with those federal principles because it would permit a shopping mall to limit expressive activity to designated areas regardless of the suitability of those areas or the suitability of other, more desirable areas,” she reasoned.
The justice also said the Ninth Circuit’s decision in United Broth. of Carpenters Local 586 v. N.L.R.B, (2008) 540 F.3d 957, that a blanket ban on expressive activity is unconstitutionally overbroad unless there is a showing that less restrictive measures would not suffice to protect the mall’s interests.
Based on this precedent, Ashmann-Gerst concluded Westside Pavilion could not stop Best Friends from protesting in front of Barkworks during the mall’s normal operating hours without a showing that such activity would substantially disrupt its normal business operations.
Justices Kathryn Doi Todd and Victoria M. Chavez joined Ashmann-Gerst in her decision.
Eric M. George and Ira Bibbero of Browne Woods George represented Best Friends in the case, while Thomas J. Leanse, Stacey McKee Knight and Janella T. Gholian of Katten Muchin Rosenman represented the mall owner.
The case is Best Friends Animal Society v. Macerich Westside Pavilion Property LLC, 11 S.O.S. 1237.
Copyright 2011, Metropolitan News Company