Fashion Valley Mall, LLC v. National Labor Relations Board

We granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from *855 urging customers to boycott a store in the mall. For the reasons that follow, we hold that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.

Facts

On October 15, 1998, 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 NLRB issued a complaint and noticed a hearing, after which an administrative law judge ruled that the Mall had violated section 8(a)(1) of the National Labor Relations Act ( 29 U.S.C. § 158 (a)(1)) by barring the employees from distributing leaflets.

The administrative law judge found that the Union “represents a unit of the…

I dissent.

By a bare four-to-three majority, Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [ 153 Cal.Rptr. 854 , 592 P.2d 341 ] (Pruneyard) 1 overruled a decision then only five years old and held that public free speech rights exist on private property under the California Constitution. Pruneyard was wrong when decided. In the nearly three decades that have since elapsed, jurisdictions throughout the nation have overwhelmingly rejected it. We should no longer ignore this tide of history. The time has come for us to forthrightly overrule Pruneyard and rejoin the rest of the nation in this important area of the law. Private property should be treated as private property, not as a public free speech zone.

Even if we do not overrule Pruneyard, supra, 23 Cal.3d 899 , we should at least not carry it to the extreme that the majority does. Pruneyard is easily distinguished. The free speech activity that Pruneyard sanctioned was compatible with normal use of the property. The opposite is true here. Fashion Valley Mall is a privately owned shopping center. A shopping center exists for the individual businesses on the premises to do business. Urging a boycott of those…

Weinberg, Roger & Rosenfeld, David A. Rosenfeld, Alameda, Caren P. Sencer, Richard D. Prochazka & Associates and Richard D. Prochazka, San Diego, for Real Party in Interest.

Law Offices of Carroll & Scully, Donald C. Carroll and Charles P. Scully II, San Francisco, for California Labor Federation, AFL-CIO, as Amicus Curiae on behalf of Real Party in Interest.

MORENO, J.

We granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. For the reasons that follow, we hold that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.

On October 15, 1998, 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…