Fashion Valley Mall, LLC v. Nat'l Labor Relations Bd. - 42 Cal. 4th 850, 69 Cal. Rptr. 3d 288, 172 P.3d 742 (2007)

Rule:

A shopping mall is a public forum in which persons may reasonably exercise their right to free speech guaranteed by Cal. Const., art. I, § 2. 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.

Facts:

The Graphic Communications International Union, Local 432-M (Union) filed a charge before the National Labor Relations Board (NLRB) alleging that the owners of the Fashion Valley Mall (Mall) in San Diego had refused to permit employees of the Union-Tribune Publishing Company to leaflet in front of Robinsons-May department store in the Mall. The administrative law judge (ALJ) ruled that the Mall had violated section 8(a)(1) of the National Labor Relations Act by barring the employees from distributing leaflets. The NLRB affirmed the ALJ’s decision. The Mall petitioned for review before the United States Court of Appeals for the District of Columbia Circuit. The appellate court posed the certified question.

Issue:

Under California law, could a shopping mall enforce a rule prohibiting persons from urging customers to boycott a store in the mall?

Answer:

No.

Conclusion:

The Court concluded that the mall's rule, which prohibited all speech that advocated a boycott, was content based and could not withstand strict scrutiny. According to the Court, the mall's purpose to maximize the profits of its merchants was not compelling compared to the union's right to free expression. The mall was a public forum in which persons could exercise their right to free speech under Cal. Const., art. I, § 2. This right included the right to urge customers in the mall to boycott one of the stores in the mall. Although the mall could enact and enforce reasonable regulations of the time, place, and manner of such free expression to assure that these activities did not interfere with the mall's normal business operations, it could not prohibit certain types of speech based upon its content, such as prohibiting speech that urged a boycott of one or more of the stores in the mall.