No Longer a Fashion Crime: Protesters Now Free to Picket Stores On Mall Grounds!

March 2008
By Tara Gillman

Organized labor celebrated as California shopping center owners lamented the sharply divided California Supreme Court’s recent ruling in Fashion Valley Mall v. NLRB, No. S144753 (Supr. Ct. Cal., December 24, 2007), holding that under the California Constitution, the right to free speech includes the right to urge customers in a shopping mall to boycott one of its stores.

This case arose from an incident on October 4, 1998, when approximately 35 union members representing pressroom employees at the San Diego Union-Tribune newspaper distributed leaflets outside the Robinsons-May department store at the Fashion Valley Mall in San Diego. The leaflets stated that Robinsons- May advertises in the Union Tribune, treats its employees unfairly and urged customers to call the newspaper’s CEO to complain. Mall security asked the union members to leave as they had failed to request a mall permit to “engage in expressive activities” as required by Mall regulations. However, according to the same Mall regulations, a condition precedent for obtaining a permit is to agree not to interfere with the purchase of merchandise or services offered by any store in the Mall. Under this policy, the union members would have been denied a permit.

The Union filed an unfair labor practice charge with the National Labor Relations Board which ruled that the Mall violated Section 8(a)(1) of the National Labor Relations Act because it was a content-based restriction crafted to protect mall tenants from lawful expression. The Mall petitioned for review before the District of Columbia U.S. Circuit Court of Appeals which, while affirming the NLRB’s findings, left open for the California Supreme Court to determine whether the Mall acted within its rights under the California Constitution.

The California Supreme Court’s holding in Fashion Valley, as stated above, was grounded in the principles enunciated by the Court in its 1979 landmark decision in Robins v. Pruneyard Shopping Center. In Robins, the Court held that a private shopping mall “can be a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks.” The Court in Fashion Valley not only reaffirmed the vitality of Pruneyard; it also expanded the ruling to specifically allow speech in a shopping center that seeks to interfere with the economic interests of mall tenants.

Time will tell whether the Fashion Valley decision will significantly increase First Amendment activity at shopping centers or have a substantial adverse impact on store revenues. Regardless, mall owners throughout California should ensure that their regulations do not prohibit speech that urges the boycott of a mall tenant. In other words, malls will no longer be permitted to protect the profits of its tenants at the expense of the exercise of First Amendment rights. Shopping center owners may, however, continue to place reasonable limits on the time a boycott may occur, its location and the manner in which it is conducted.