Under California Constitution, Shopping Center May Not Prohibit Persons from Urging Customers to Boycott a Mall Store

Case: Fashion Valley Mall, LLC v. National Labor Relations Board, Case No. S144753 (Cal. Sup. Ct. 12/24/07)

The One Sentence Summary: Although shopping centers may enforce reasonable time, place, and manner rules to ensure that free speech activities do not interfere with normal business operations, they may not enforce content-based restrictions such as prohibiting speech that urges a boycott of one or more stores in the center.


What They Were Fighting About: Members of a union representing pressroom employees of a San Diego general circulation newspaper distributed leaflets to customers entering and leaving Robinsons-May department store at Fashion Valley Mall in San Diego. The union and the newspaper had been unable to reach a new collective bargaining agreement. The leaflets alleged that the newspaper treated its employees unfairly and stated that the department store advertised in the newspaper. Mall officials required the leafleting to stop because the union members had not obtained a permit to engage in expressive activity at the mall. Under mall rule 5.6.2, a permit applicant must agree to refrain from conduct urging customers not to purchase merchandise or services offered by one or more stores or merchants in the mall. After the union filed charges with the National Labor Relations Board ("NLRB"), an administrative law judge ruled that the union members were engaged in a lawful boycott of the department store and ordered the mall to cease and desist from prohibiting the leafleting. The NLRB affirmed that order, finding that California law permits speech and petitioning activity in private shopping centers subject to reasonable time, place, and manner rules and that rule 5.6.2 was an impermissible content-based restriction. On appeal, the United States Court of Appeals for the District of Columbia Circuit requested that the California Supreme Court decide whether under California law the mall could maintain and enforce rule 5.6.2 against the union.

Court Holdings: The California Supreme Court granted the request for review and held, in a 4-3 decision, that the right to free speech under the California Constitution includes the right to urge customers in a private shopping mall to boycott one or more of the mall's stores.

• In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979), the California Supreme Court held that the California Constitution protects speech and petitioning in shopping centers that are privately owned (even though the First Amendment to the United States Constitution does not), subject to reasonable time, place, and manner rules.
• In the present case, the court rejected the mall's argument that its rule prohibiting speech that advocates a boycott of a mall store or merchant is a reasonable regulation to prevent interference with normal business operations.
• The court found that the mall's rule is not content-neutral because it prohibits speech urging a boycott while permitting speech that does not, precluding an entire category of speech. The court concluded that the mall's rule could not be justified by any legitimate concerns that are unrelated to content. Peaceful leafleting that urges a boycott in a mall does not by its nature create disruptive congestion, nor is it inherently intrusive or coercive like some solicitations for monetary donations that may be prohibited. Leaflets urging a boycott may persuade customers not to patronize a store, but the mall's concern over the effectiveness of the speech's message is not a proper basis for prohibiting it.
• Applying strict scrutiny, the court concluded that the mall's interest in maximizing the profits of its merchants was not compelling compared to the union's right to free speech.
• The three dissenting justices advocated the overruling of Pruneyard (which has been rejected by most other jurisdictions) on the grounds that private property should not be treated as a free speech zone. Moreover, they opined that even under Pruneyard, free speech activity must not be incompatible with the normal use of the property, and that speech urging a boycott of businesses at a shopping center is incompatible with the center's purpose of enabling its tenants to do business. "We should not compel shopping center owners to permit activity that interferes with the purpose for the center's existence."

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Entrance Area of Retailer's Store in Shopping Center Is Not Public Forum for Free Speech Activity Under California Constitution

Case: Van v. Home Depot, U.S.A., Inc., Case No. B190831 (Cal. Ct. App. 10/5/07)

The One Sentence Summary: The California Constitution does not protect expressive activity in the area immediately surrounding the entrance of an individual retail store that does not itself possess the characteristics of a public form, even when the store is part of a larger shopping center.


What They Were Fighting About:

Plaintiffs, on behalf of a class of individuals who gather voter signatures for initiatives, referenda and recalls, and register voters, filed suit against defendants Target, Wal-Mart and Home Depot, based on the stores’ refusal to allow plaintiffs to collect signatures in the area outside the stores’ entrances. Plaintiffs alleged causes of action for violation of the right to free speech, violation of Civil Code sections 51 and 52, violation of Business & Professions Code section 17200 and declaratory relief, and sought damages and equitable and injunctive relief. Plaintiffs conceded that their action was directed only at defendants’ stores located in larger shopping centers (not stand-alone stores) and argued that these centers were public fora where expressive activity was allowed. The trial court granted summary judgment to defendants on the ground the defendants’ store entrances, aprons and perimeters were not public fora but were an extension of the store itself, and therefore the societal interest in using the stores for expressive activity did not outweigh the defendants’ interests in controlling the use of their private property. On appeal, plaintiffs argued that the trial court made two errors in granting summary judgment: first, triable issues of fact existed as to whether plaintiffs were gathering signatures on defendants’ private property (as opposed to the shopping center’s property); and second, the trial court erroneously concluded that the area in front of defendants’ stores was not a public forum.

Court Holdings: The Court of Appeal affirmed the judgment on the trial court’s order granting summary judgment and held:

• The undisputed evidence established that the areas where plaintiffs were gathering signatures were private property and that defendants controlled the areas by using them to sell merchandise. The court also rejected plaintiffs’ argument, raised for the first time at the summary judgment hearing, that some of the apron areas actually were owned by the shopping centers and should therefore be considered public fora like a shopping center common area because the argument was inconsistent with plaintiffs’ complaint, which alleged that defendants owned the areas in question.
• The apron and perimeter area of defendants’ stores were not a public forum under the balancing test established by the California Supreme Court in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, affd. sub nom., Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 (“Pruneyard”). Pruneyard held that the California Constitution protects expressive activity in the common areas of a large, privately owned shopping center based on a balancing of the competing interests of the private property owner with society’s interest in using the private property as a forum for the expressive activity. Courts applying the balancing test look at whether the private property serves as the functional equivalent of a public forum, considering (1) the nature, purpose and primary use of the property; (2) the extent and nature of the public invitation to use the property; and (3) the relationship between the ideas sought to be presented and the purpose of the property’s occupants. In this case, the nature, purpose and primary use of the property were not designed to encourage patrons to spend time together or be entertained; the extent and nature of the public invitation to use the property was designed to encourage shopping, not congregating; and there was no relationship between the ideas sought to be presented and the purpose of the property’s occupants.
• The court rejected plaintiffs’ argument that the location of some of defendants’ stores as “anchors” in large Pruneyard-type shopping centers bestowed a public nature on the stores’ apron and perimeter areas, and declined to extend the Pruneyard holding to the entrance and exit area of an individual retail establishment in a larger shopping center. The undisputed evidence showed that the apron and perimeter areas of defendants’ stores lacked any public forum attributes and the trial court therefore properly concluded that any societal interest in using the area as a forum for expressive activity did not outweigh defendants’ interest in maintaining control over the use of their stores.

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