In Fashion Valley Mall, LLC v. National Labor Relations Board, (— Cal.Rptr.3d —, 2007 WL 4472241, Cal., Dec. 24, 2007), the California Supreme Court considered whether a shopping mall’s rule prohibiting people from urging customers to boycott a store in the mall violated the right to free speech granted by the California Constitution.
The court determined that because the rule is not content-neutral, but bans certain speech because of its content, and does not merely regulate the time, place, and manner of speech, it violates the right of free speech and is unconstitutional.
Facts
In 1998, members of the Graphic Communications International Union Local 432-M (“Union”), embroiled in a labor dispute with their employer, the San Diego Union-Tribune newspaper, distributed leaflets to customers entering and leaving the Robinsons-May store at the Fashion Valley Mall (“Mall”). The leaflets stated that Robinsons-May advertised in the Union-Tribune, described how the Union-Tribune allegedly mistreated its workers, and urged customers to show their support for better treatment of newspaper employees. Mall officials ordered the union members to stop distributing the leaflets and to leave the Mall, citing a Mall rule against “urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center.” The Mall threatened the leafleters with legal action and arrest if they did not leave.
The Union filed a charge before the National Labor Relations Board (“NLRB”). Following a hearing, an administrative law judge (“ALJ”) ruled that the Mall violated the National Labor Relations Act (“Act”) by stopping the union members from leafleting, and ordered the Mall to cease and desist from prohibiting the union’s actions. The NLRB affirmed the ALJ’s ruling and the Mall then appealed to the United States Court of Appeals. That court ruled that the Mall’s rule violates the Act, unless the Mall could demonstrate a right under California law to maintain its rule banning pro-boycott speech. That question was handed to the California Supreme Court to resolve.
Decision
Article I, Section 2, subdivision (a) of the California Constitution states: “Every person may freely speak, write and publish his or her statements on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” The court noted that in Robins v. Pruneyard Shopping Center, (1979) 23 Cal. 3d 899, it ruled that a shopping center is a public forum, where the reasonable exercise of free speech is protected.
The level of scrutiny given a restriction of free speech depends upon whether it is a content-neutral regulation of the time, place and manner of speech, or restricts speech based upon its content. A content-based restriction is subject to stricter scrutiny, must be necessary to serve a compelling interest, and be narrowly drawn to achieve that end, the court said. The Mall’s rule banning speech urging boycotts of Mall stores was plainly content-based because it singled out a specific category of speech for prohibition, the court reasoned.
The Supreme Court concluded that prohibiting speech that advocates a boycott is not a time, place or manner restriction because it is not content neutral. The Mall’s rule prohibiting persons form urging a boycott is improper because it does not regulate the time, place, or manner of speech, but rather bans speech urging a boycott because of its content. Restrictions upon speech that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content bases.
No compelling interest here justified such a ban, the court said, and the Mall’s rule could not withstand strict scrutiny. “The Mall’s purpose to maximize the profits of its merchants is not compelling compared to the Union’s right to free expression,” the court ruled. A mall can impose reasonable regulations upon the time, place and manner of speech but cannot prohibit speech based on content, the court added.
The California Supreme Court majority concluded that the Mall’s rule was unconstitutional and cannot be enforced under the California Constitution.