Supreme Court of California Justia
Citation 42 Cal. 4th 850, 172 P.3d 742, 69 Cal. Rptr. 3d 288

Fashion Valley Mall v. NLRB

Filed 12/24/07



IN THE SUPREME COURT OF CALIFORNIA



FASHION VALLEY MALL, LLC,

Petitioner,

S144753

v.

D.C. Cir.Ct.App. No. 04-1411

NATIONAL LABOR RELATIONS

BOARD, )


Respondent;

GRAPHIC COMMUNICATIONS

INTERNATIONAL UNION,

LOCAL 432-M,

Real Party in Interest.



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.

FACTS

On October 15, 1998, Graphic Communications International Union Local

432-M (Union) filed a charge before the National Labor Relations Board (NLRB)

1


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.1

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

pressroom employees at the San Diego Union-Tribune (Union-Tribune), a major

general circulation newspaper in San Diego.” The collective bargaining

agreement between the employees and the newspaper had expired in 1992 and the

parties had been unable to reach a new agreement. The administrative law judge

thus found that a “primary labor dispute” existed between the newspaper and its

employees at the time of the disputed labor activities in 1998.

On October 4, 1998, 30 to 40 Union members had distributed leaflets to

customers entering and leaving the Robinsons-May store at the Mall.2 The leaflets

stated that Robinsons-May advertises in the Union-Tribune, described several

ways that the newspaper allegedly treated its employees unfairly, and urged

customers who believed “that employers should treat employees fairly” to call the


1

The National Labor Relations Act provides that it is an unfair labor practice

for an employer to “interfere with, restrain, or coerce employees” in the exercise
of certain rights, including “the right to self-organization, to form, join, or assist
labor organizations, . . . and to engage in other concerted activities for the purpose
of collective bargaining . . . .” (29 U.S.C. §§ 157, 158(a)(1) [barring interference
with rights in § 157 (§ 7 of act)].)
2

In addition to Robinsons-May, the Fashion Valley Mall includes

Nordstrom, Neiman Marcus, Saks Fifth Avenue, Macy’s, and JC Penny
department stores, as well as an 18-theater movie complex. The mall is
surrounded by parking structures and lots.

2

newspaper’s “CEO,” listing his name and telephone number. The administrative

law judge concluded: “From all indications, the leafleters conducted their activity

in a courteous and peaceful manner without a disruption of any kind and without

hindrance to customers entering or leaving” the store.

Within 15 or 20 minutes, Mall officials “arrived on the scene to stop the

leafleting,” notifying the Union members that they were trespassing because they

had not obtained a permit from the Mall “to engage in expressive activity,” and

warning them that they “would be subject to civil litigation and/or arrest if they

did not leave.” A police officer appeared and, following a brief argument, the

Union members moved to public property near the entrance to the Mall and

continued distributing leaflets briefly before leaving the area.

The Mall has adopted rules requiring persons who desire to engage in

expressive activity at the Mall to apply for a permit five business days in advance.

The applicant “must agree to abide by” the Mall’s rules, including rule 5.6, which

prohibits “impeding, competing or interfering with the business of one or more of

the stores or merchants in the shopping center by: [¶] . . . [¶] 5.6.2 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 administrative law judge found that the Union “was attempting to

engage in a lawful consumer boycott of Robinsons-May because Robinsons-May

advertised in the Union-Tribune newspaper” and further found “that it would have

been utterly futile for the Union to have followed [the Mall]’s enormously

burdensome application-permit process because its rules contained express

provisions barring the very kind of lawful conduct the Union sought to undertake

at the Mall.” The administrative law judge thus ordered the Mall to cease and

3

desist prohibiting access to the Union’s “leafleters for the purpose of engaging in

peaceful consumer boycott handbilling.”

On September 26, 2001, the matter was transferred to the NLRB in

Washington, D.C. On October 29, 2004, the NLRB issued an opinion affirming as

modified the administrative law judge’s decision. Citing our decision in Robins v.

Pruneyard Shopping Center (1979) 23 Cal.3d 899, affirmed sub nomine

Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, the NLRB stated:

“California law permits the exercise of speech and petitioning in private shopping

centers, subject to reasonable time, place, and manner rules adopted by the

property owner. [Citations.] Rule 5.6.2, however, is essentially a content-based

restriction and not a time, place, and manner restriction permitted under California

law. That is, the rule prohibits speech ‘urging or encouraging in any manner’

customers to boycott one of the shopping center stores. . . . [I]t appears that the

purpose and effect of this rule was to shield [the Mall]’s tenants, such as the

Robinsons-May department store, from otherwise lawful consumer boycott

handbilling. Accordingly, we find that [the Mall] violated Section 8(a)(1) by

maintaining Rule 5.6.2. [Citation.]” (Fn. omitted.)

The Mall petitioned for review before the United States Court of Appeals

for the District of Columbia Circuit, which issued an opinion on June 16, 2006.

The court of appeals stated it had to resolve two issues: “(1) State law aside, did

[the Mall]’s requirement of a permit for expressive activity, conditioned as it was

upon the Union’s agreement not to urge a boycott of any Mall tenant, violate

§ 8(a)(1) of the Act? (2) If so, was [the Mall] acting within its rights under

California law?” The court answered the first question in the affirmative, which

meant that the case turned on the resolution of the second question. The court

addressed this question of California law as follows: “Although [the Mall] is

4

correct that there is not substantial evidence the Union intended to boycott any of

the Mall’s tenants, nothing in the Act prohibits the Union from carrying out a

secondary boycott[3] by means of peaceful handbilling. [Citation.] In subjecting

the Union to a permit process that required it to forswear use of this lawful tactic,

therefore, [the Mall] interfered with the employees’ rights under § 7 of the Act. . . .

Enforcement of Rule 5.6.2 therefore violated § 8(a)(1) — unless, that is, the

Company had the right under California constitutional law to exclude the

employees altogether.” The court of appeals observed that “no California court

has squarely decided whether a shopping center may lawfully ban from its

premises speech urging the public to boycott a tenant,” and concluded that

“whether [the Mall] violated § 8(a)(1) of the Act depends upon whether it could

lawfully maintain and enforce an anti-boycott rule — a question no California

court has resolved.” Accordingly, the United States Court of Appeals for the

District of Columbia Circuit filed in this court a request,4 which we granted, to

decide the following question: “Under California law may Fashion Valley

maintain and enforce against the Union its Rule 5.6.2?”

DISCUSSION

Article I, section 2, subdivision (a) of the California Constitution declares:

“Every person may freely speak, write and publish his or her sentiments on all


3

A “secondary boycott” is “union activity directed against a neutral

employer.” (NLRB v. Pipefitters (1977) 429 U.S. 507, 534.)
4

Rule 8.548(a) of the California Rules of Court, which replaced former rule

29.8(a), states: “On request of the United States Supreme Court, a United States
Court of Appeals, or the court of last resort of any state, territory, or
commonwealth, the Supreme Court may decide a question of California law if: [¶]
(1) The decision could determine the outcome of a matter pending in the
requesting court; and [¶] (2) There is no controlling precedent.”

5

subjects, being responsible for the abuse of this right. A law may not restrain or

abridge liberty of speech or press.” Nearly 30 years ago, in Robins v. Pruneyard

Shopping Center, supra, 23 Cal.3d 899, 910 (Pruneyard), we held that this

provision of our state Constitution grants broader rights to free expression than

does the First Amendment to the United States Constitution by holding that a

shopping mall is a public forum in which persons may exercise their right to free

speech under the California Constitution. We stated that a shopping center “to

which the public is invited can provide an essential and invaluable forum for

exercising [free speech] rights.” (Ibid.) We noted that in many cities the public

areas of the shopping mall are replacing the streets and sidewalks of the central

business district which, “have immemorially been held in trust for the use of the

public and, time out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public questions.”

(Hague v. C.I.O (1939) 307 U.S. 496, 515.) Because of the “growing importance

of the shopping center[,] . . . to prohibit expressive activity in the centers would

impinge on constitutional rights beyond speech rights,” particularly the right to

petition for redress of grievances. (Pruneyard, supra, 23 Cal.3d at p. 907.)

Accordingly, we held that the California Constitution “protect[s] speech and

petitioning, reasonably exercised, in shopping centers even when the centers are

privately owned.” (Id. at p. 910.) We added the caveat in Pruneyard that “[b]y no

means do we imply that those who wish to disseminate ideas have free rein,”

noting our previous “endorsement of time, place, and manner rules.” (Ibid.)

The Mall in the present case generally allows expressive activity, as

mandated by the California Constitution, but requires persons wishing to engage

in free speech in the Mall to obtain a permit. Under rule 5.6.2, the Mall will not

issue a permit to engage in expressive activity unless the applicant promises to

6

refrain from conduct “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.” We must determine, therefore, whether a

shopping center violates California law by banning from its premises speech

urging the public to boycott one or more of the shopping center’s businesses.

The idea that private property can constitute a public forum for free speech

if it is open to the public in a manner similar to that of public streets and sidewalks

long predates our decision in Pruneyard. The United States Supreme Court

recognized more than half a century ago that the right to free speech guaranteed by

the First Amendment to the United States Constitution can apply even on privately

owned land. In Marsh v. Alabama (1946) 326 U.S. 501, 502, the high court held

that a Jehovah’s Witness had the right to distribute religious literature on the

sidewalk near the post office of a town owned by the Gulf Shipbuilding

Corporation, because the town had “all the characteristics of any other American

town. . . . In short, the town and its shopping district are accessible to and freely

used by the public in general, and there is nothing to distinguish them from any

other town and shopping center except the fact that the title to the property

belongs to a private corporation.” (Id. at pp. 502-503.) The high court stated:

“The more an owner, for his advantage, opens up his property for use by the

public in general, the more do his rights become circumscribed by the statutory

and constitutional rights of those who use it.” (Id. at p. 506.)

This court followed the high court’s decision in Marsh to hold that a

shopping center could not prohibit a union’s peaceful picketing of one of the

shopping center’s stores. (Schwartz-Torrance Investment Corp. v. Bakery &

Confectionery Workers’ Union (1964) 61 Cal.2d 766 (Schwartz-Torrance).) We

recognized that peaceful picketing by a labor union “involves an exercise of the

7

constitutionally protected right of freedom of speech.” (Id. at p. 769.) We

rejected the shopping center’s argument that its right to “the exclusive possession

and enjoyment of private property” outweighed the union’s right to picket:

“Because of the public character of the shopping center, however, the impairment

of plaintiff’s interest must be largely theoretical. Plaintiff has fully opened his

property to the public.” (Id. at p. 771.)

In In re Hoffman (1967) 67 Cal.2d 845, we reiterated that private property

that was open to the public in the same manner as public streets or parks could

constitute a public forum for free expression, holding that protesters had the right

to express their opposition to the war in Vietnam by distributing leaflets in Union

Station in Los Angeles, “a spacious area open to the community as a center for rail

transportation” that was owned by three railroad companies. (Id. at p. 847.) This

court reasoned that, with regard to distributing leaflets, “a railway station is like a

public street or park. Noise and commotion are characteristic of the normal

operation of a railway station. The railroads seek neither privacy within nor

exclusive possession of their station. They therefore cannot invoke the law of

trespass against petitioners to protect those interests. [¶] Nor was there any other

interest that would justify prohibiting petitioners’ activities. Those activities in no

way interfered with the use of the station. They did not impede the movement of

passengers or trains, distract or interfere with the railroad employees’ conduct of

their business, block access to ticket windows, transportation facilities or other

business legitimately on the premises. Petitioners were not noisy, they created no

disturbance, and did not harass patrons who did not wish to hear what they had to

say. [¶] Had petitioners in any way interfered with the conduct of the railroad

business, they could legitimately have been asked to leave.” (Id. at pp. 851-852,

fn. omitted.)

8

In In re Lane (1969) 71 Cal.2d 872, we applied our earlier holding in

Schwartz-Torrance to conclude that a union had a right to distribute handbills on a

privately owned sidewalk outside a business. We held that the sidewalk “is not

private in the sense of not being open to the public. The public is openly invited

to use it in gaining access to the store and in leaving the premises.” (Id. at p. 878.)

We held, therefore, that the privately owned sidewalk was “a public area in which

members of the public may exercise First Amendment rights,” including

peacefully distributing handbills: “[W]hen a business establishment invites the

public generally to patronize its store and in doing so to traverse a sidewalk

opened for access by the public the fact of private ownership of the sidewalk does

not operate to strip the members of the public of their rights to exercise First

Amendment privileges on the sidewalk at or near the place of entry to the

establishment. In utilizing the sidewalk for such purposes those seeking to

exercise such rights may not do so in a manner to obstruct or unreasonably

interfere with free ingress or egress to or from the premises.” (Ibid.)

During the interim between our decisions in Schwartz-Torrance and Lane,

the United States Supreme Court adopted a similar position, holding in Food

Employees v. Logan Plaza (1968) 391 U.S. 308 (disapproved in Hudgens v. NLRB

(1976) 424 U.S. 507, 518) that peaceful picketing by union members of a business

in a shopping center that employed nonunion workers was protected by the First

Amendment. The high court observed that that the shopping center in Logan

Plaza “is clearly the functional equivalent of the business district” in Marsh.

(Food Employees v. Logan Plaza, supra, 391 U.S. at p. 318.) The high court

emphasized the importance of recognizing a union’s right to peacefully picket in a

shopping center: “Business enterprises located in downtown areas would be

subject to on-the-spot public criticism for their practices, but businesses situated in

9

the suburbs could largely immunize themselves from similar criticism by creating

a cordon sanitaire of parking lots around their stores. Neither precedent nor

policy compels a result so at variance with the goal of free expression and

communication that is the heart of the First Amendment.” (Id. at pp. 324-325.)

In Diamond v. Bland (1970) 3 Cal.3d 653 (Diamond I), we went one step

further than the decision in Logan Plaza. Logan Plaza held that a shopping center

could not prohibit a union from peacefully picketing one of the stores in the

center, but the issue in Diamond I was whether a privately owned shopping center

could prohibit free speech activity that was unrelated to the business of the center.

In Diamond I, a large privately owned shopping center refused to allow a group

called the People’s Lobby to solicit signatures on two antipollution initiative

petitions. We noted that the United States Supreme Court had held in Logan

Plaza that “a shopping center could not absolutely prohibit union picketing of a

business located within the Center,” but had “expressly declined to decide whether

‘respondents’ property rights could, consistently with the First Amendment, justify

a bar on picketing which was not thus directly related in its purpose to the use to

which the shopping center property was being put.’ [Citation.]” (Id. at p. 661.)

We observed that, prior to the decision in Logan Plaza, we had “reached an

identical result” in Schwartz-Torrance, holding that a shopping center could not

prohibit peaceful union picketing of a business in the center and, in Lane, had

extended that holding to apply to a privately owned sidewalk in front of a

business. (Ibid.) We concluded that it was settled that a shopping center could not

prohibit free speech activity, such as union picketing, that was related to the

business of the shopping center: “This series of cases involving union picketing in

shopping centers establishes constitutional protection for picketing and other First

10

Amendment activities which are related in their purpose to the normal use to

which the shopping center property is devoted.” (Ibid.)

The issue presented in Diamond I was whether a privately owned shopping

center could prohibit free speech activity that was unrelated to the business of the

shopping center. We acknowledged that it was relevant that in both Schwartz-

Torrance and Logan Plaza “the unions involved were picketing businesses located

within the shopping centers,” because that fact “strengthened the interest of the

petitioners in their exercise of the First Amendment activities inside the shopping

centers.” (Diamond I, supra, 3 Cal.3d 653, 662.) We explained: “When the

activity to be protected is the right to picket an employer, the location of the

employer’s business is often the only effective locus; alternative locations do not

call attention to the problem which is the subject of the picketing and may fail to

apply the desired economic pressure.” (Ibid.) But even though the interest in

conducting free speech activity that is unrelated to the business of the shopping

center is significantly less than the interest of a union to picket a business, it

remained sufficiently substantial to outweigh the owner’s interest in prohibiting

such activity: “Therefore, although there is arguable merit to defendants’ position

that plaintiffs’ interest in the exercise of their First Amendment rights at the

Center may be less compelling than the First Amendment interests involved in

Schwartz-Torrance, Logan Plaza, and Lane, their contention does not justify

striking the balance in favor of defendants’ property rights. As we have explained,

plaintiffs’ interest is of significant constitutional dimension, while defendants’

concern is no stronger than the interests of the property owners in Schwartz-

Torrance, Logan, and Lane.” (Id. at p. 663.) Thus, a privately owned shopping

center must permit not only peaceful picketing of businesses in the center, but

11

further must permit free speech activity that is unrelated to the business of the

shopping center.

Two years later, the United States Supreme Court in Lloyd Corp. v. Tanner

(1972) 407 U.S. 551, took a different course and disagreed with our decision in

Diamond I, holding to the contrary that a privately owned shopping center could

prohibit First Amendment activity that was unrelated to the business of the center.

In light of the high court’s decision in Lloyd, we reconsidered our decision

in Diamond I and, in Diamond v. Bland (1974) 11 Cal.3d 331, 332 (Diamond II),

held that a privately owned shopping center could prohibit free speech activity that

was unrelated to the operation of the shopping center. Justice Mosk, joined by

Justice Tobriner and, in part, by Justice Sullivan, filed a lengthy and impassioned

dissent, urging the court to adhere to its decision in Diamond I on the basis of the

California Constitution. He wrote: “For a number of years cases in this state even

prior to the federal decision in [Logan Plaza] have held that union members enjoy

the right to picket an employer on the property of a privately owned shopping

center. These decisions emphasized that an employee who sought to bring his

grievance to the attention of the public and apply economic sanctions against his

employer could effectively do so only at the place where the business was located,

and that any incidental impairment of the shopping center owner’s property rights

was largely theoretical since he had opened his premises to the public and his right

in the property was ‘worn thin by public usage.’ [Citations.] . . . [¶] The Diamond

[I] opinion recognized that although Schwartz-Torrance and Lane were factually

distinguishable in some respects, the distinction did not justify striking a new

balance to limit plaintiff’s freedom of expression.” (Diamond II, supra, 11 Cal.3d

331, 341 (dis. opn. of Mosk, J.).)

12

The United States Supreme Court then abandoned its holding in Logan

Plaza that a shopping center could not prohibit a union from peacefully picketing

one of the stores in the center by holding in Hudgens v. NLRB (1976) 424 U.S.

507, 518, that “the reasoning of the Court's opinion in Lloyd cannot be squared

with the reasoning of the Court’s opinion in Logan [Plaza].” The United States

Supreme Court thus held that the First Amendment did not guarantee the right to

free speech in a shopping mall. This court, however, did not follow the lead of the

high court. Rather, we heeded the wisdom of Justice Mosk’s dissent in Diamond

II and held in Pruneyard that the California Constitution granted a right to free

speech in a privately owned shopping center. (Pruneyard, supra, 23 Cal.3d

899, 902.)

Our decision that the California Constitution protects the right to free

speech in a shopping mall, even though the federal Constitution does not, stems

from the differences between the First Amendment to the federal Constitution and

article I, section 2 of the California Constitution. We observed in Gerawan

Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 486, that the free speech clause in

article I of the California Constitution differs from its counterpart in the federal

Constitution both in its language and its scope. “It is beyond peradventure that

article I’s free speech clause enjoys existence and force independent of the First

Amendment’s. In section 24, article I states, in these very terms, that ‘[r]ights

guaranteed by [the California] Constitution are not dependent on those guaranteed

by the United States Constitution.’ This statement extends to all such rights,

including article I’s right to freedom of speech. For the California Constitution is

now, and has always been, a ‘document of independent force and effect

particularly in the area of individual liberties.’ [Citations.]” (Gerawan Farming,

Inc. v. Lyons, supra, 24 Cal.4th at pp. 489-490.) “As a general rule, . . . article I’s

13

free speech clause and its right to freedom of speech are not only as broad and as

great as the First Amendment’s, they are even ‘broader’ and ‘greater.’ [Citations.]”

(Gerawan Farming, Inc. v. Lyons, supra, 24 Cal.4th 468, 491.)

In Pruneyard, supra, 23 Cal.3d 899, 902, high school students in the mall

were prohibited from soliciting support for their opposition to a United Nations

resolution against Zionism. We held that the mall could not prohibit the students’

efforts despite the fact that this free speech activity was unrelated to the business

of the center. (Ibid.) In so holding, we relied upon our earlier decision in

Schwartz-Torrance, which, we noted, “held that a labor union has the right to

picket a bakery located in a shopping center.” (Id. at p. 909.) We cautioned,

however, that we did not “imply that those who wish to disseminate ideas have

free rein,” noting our previous “endorsement of time, place, and manner rules.”

(Id. at p. 910.) We also repeated Justice Mosk’s observation in his dissent in

Diamond II that compelling a shopping center to permit “ ‘[a] handful of

additional orderly persons soliciting signatures and distributing handbills in

connection therewith, under reasonable regulations adopted by defendant to assure

that these activities do not interfere with normal business operations [citation]

would not markedly dilute defendant’s property rights.’ [Citation.]” (Id. at

p. 911, quoting Diamond II, supra, 11 Cal.3d 331, 345, dis. opn. of Mosk, J.)5

5

The shopping center in Pruneyard appealed our decision to the United

States Supreme Court, arguing that it violated the shopping center’s constitutional
right to control the use of its private property. (Pruneyard Shopping Center v.
Robins
, supra, 447 U.S. 74, 79.) The high court disagreed, noting that its decision
in Lloyd did not “limit the authority of the State to exercise its police power or its
sovereign right to adopt in its own Constitution individual liberties more
expansive than those conferred by the Federal Constitution.” (Id. at p. 81.) The
court rejected the argument that compelling the shopping mall to permit
expressive activity amounted to a taking of its private property, observing that it

(Footnote continued on next page.)

14

The Mall argues that its rule banning speech that advocates a boycott is a

“reasonable regulation” designed to assure that free expression activities “do not

interfere with normal business operations” within the meaning of our decision in

Pruneyard. (Pruneyard, supra, 23 Cal.3d 899, 911.) According to the Mall, it

“has the right to prohibit speech that interferes with the intended purpose of the

Mall,” which is to promote “the sale of merchandise and services to the shopping

public.” We disagree.

It has been the law since we decided Schwartz-Torrance in 1964, and

remains the law, that a privately owned shopping center must permit peaceful

picketing of businesses in shopping centers, even though such picketing may harm

the shopping center’s business interests.6 Our decision in Diamond I recognized



(Footnote continued from previous page.)

would not “unreasonably impair the value or use of their property as a shopping
center. The PruneYard is a large commercial complex that covers several city
blocks, contains numerous separate business establishments, and is open to the
public at large. The decision of the California Supreme Court makes it clear that
the PruneYard may restrict expressive activity by adopting time, place, and
manner regulations that will minimize any interference with its commercial
functions.” (Id. at p. 83.)
6

The Mall argues that we cannot rely upon the decisions in Schwartz-

Torrance, supra, 61 Cal.2d 766, and In re Lane, supra, 71 Cal.2d 872, because
they were based upon the First Amendment, but we have held that the “fact that
those opinions cited federal law that subsequently took a divergent course does not
diminish their usefulness as precedent.” (Pruneyard, supra, 23 Cal.3d 899, 908.)
As the plurality in Golden Gateway Center v. Golden Gateway Tenants Assn.
(2001) 26 Cal.4th 1013 later observed: “Although all of these cases relied on the
First Amendment and the pre-Lloyd decisions of the United States Supreme Court
. . . Robins [v. Pruneyard Shopping Center] found many of the principles
enunciated in these cases persuasive in interpreting California’s free speech
clause. [Citation.]” (Id. at p. 1032 (plur. opn. of Brown, J.), fn. omitted.)

15

that citizens have a strengthened interest, not a diminished interest, in speech that

presents a grievance against a particular business in a privately owned shopping

center, including speech that advocates a boycott.

In so holding in Diamond I, we added the caveats to which Justice Mosk

referred in his dissent in Diamond II (11 Cal.3d 331, 345), which we discussed in

Pruneyard (23 Cal.3d 899, 911) and upon which the Mall in the present case

relies: that a shopping center may prohibit conduct “calculated to disrupt normal

business operations” or that would result in “obstruction of or undue interference

with normal business operations.” (Diamond I, supra, 3 Cal.3d 653, 665-666.)

But this does not mean that shopping centers can prohibit speech that advocates a

boycott. In adding these caveats recognizing a shopping center’s right to impose

reasonable regulations upon expressive activity, we used as examples our

decisions in Schwartz-Torrance and Lane, both of which recognized the right of a

union to picket a business and advocate a boycott. We expressly noted that we

were approving regulations that would impose “reasonable limitation[s] as to time,

place, or manner.” (Diamond I, at p. 665.)7 In light of the fact that we expressly

relied upon, and extended, our decisions in Schwartz-Torrance and Lane, which

approved union activity advocating a boycott, it would make no sense to interpret


7

We provided examples of such regulations: “Moreover, the trial court

findings in the instant action demonstrate the ability of Inland Center to regulate
the various sales promotions and displays that are permitted in the common
aisleways: ‘In every instance where a promotion is held, it is closely regulated as
to time, date, location, number of people or exhibits involved, manner of
presentation and security factors.’ Similar regulations, if not repressive in scope,
can be devised to protect Inland Center from actual or potential danger of First
Amendment activities being conducted on its premises in a manner calculated to
disrupt normal business operations and to interfere with the convenience of
customers.” (Diamond I, supra, 3 Cal.3d 653, 665.)

16

this language in Diamond I (and its subsequent references in the dissent in

Diamond II and the decision in Pruneyard) to suggest that shopping centers may

prohibit speech that advocates a boycott.8

The level of scrutiny with which we review a restriction of free speech

activity depends upon whether it is a content-neutral regulation of the time, place,

or manner of speech or restricts speech based upon its content. A content-neutral

regulation of the time, place, or manner of speech is subjected to intermediate

scrutiny to determine if it is “(i) narrowly tailored, (ii) serves a significant

government interest, and (iii) leaves open ample alternative avenues of


8

The United States Supreme Court recognized that, under the First

Amendment, speech that does no more than attempt to peacefully persuade
customers not to patronize a business cannot be banned on the ground that it
interferes with normal business operations. The high court held that the fact that
customers might be persuaded not to patronize a business did not justify restricting
speech advocating a boycott: “It may be that effective exercise of the means of
advancing public knowledge may persuade some of those reached to refrain from
entering into advantageous relations with the business establishment which is the
scene of the dispute. Every expression of opinion on matters that are important
has the potentiality of inducing action in the interests of one rather than another
group in society. But the group in power at any moment may not impose penal
sanctions on peaceful and truthful discussion of matters of public interest merely
on a showing that others may thereby be persuaded to take action inconsistent
with its interests
. . . . We hold that the danger of injury to an industrial concern is
neither so serious nor so imminent as to justify the sweeping proscription of
freedom of discussion . . . .” (Thornhill v. Alabama (1940) 310 U.S. 88, 104-105,
italics added, fn. omitted.)


This important distinction between urging customers to boycott a business

and physically impeding access to that business was recognized in People v. Poe
(1965) 236 Cal.App.2d Supp. 928, which affirmed convictions for trespass of
protesters who blocked the entrance to a bank, while recognizing the right of the
protesters to peacefully picket, observing that the protesters “may call the bank to
task for its wrongs, real or not, but they may not themselves interfere with
anything but the minds of their audience.” (Id. at p. Supp. 937.)

17

communication. [Citation.]” (Los Angeles Alliance for Survival v. City of Los

Angeles (2000) 22 Cal.4th 352, 364 (Alliance).) A content-based restriction is

subjected to strict scrutiny. “[D]ecisions applying the liberty of speech clause [of

the California Constitution], like those applying the First Amendment, long have

recognized that in order to qualify for intermediate scrutiny (i.e., time, place, and

manner) review, a regulation must be ‘content neutral’ [citation], and that if a

regulation is content based, it is subject to the more stringent strict scrutiny

standard. [Citation.]” (Id. at pp. 364-365, fn. omitted.)9

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

from 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 based.’

[Citation.]” (DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864,

877.)

The Mall argues that its rule prohibiting speech that urges a boycott is “a

‘content-neutral’ restriction under California law because it applies to any and all

requests for a consumer boycott of the Mall’s merchants . . . regardless of the

subject matter or viewpoint of the speaker advocating the boycott . . . .” The Mall

is mistaken. The Mall’s rule prohibiting all boycotts may be viewpoint neutral,


9

“Clearly, government has no power to restrict [expressive] activity because

of its message. Our cases make equally clear, however, that reasonable ‘time,
place and manner’ regulations may be necessary to further significant
governmental interests, and are permitted.” (Grayned v. City of Rockford (1972)
408 U.S. 104, 115, fns. omitted.)

18

because it treats all requests for a boycott the same way,10 but it is not content

neutral, because it prohibits speech that urges a boycott while permitting speech

that does not.

In Boos v. Barry (1987) 485 U.S. 312, 315, the high court considered a

provision that prohibited “the display of any sign within 500 feet of a foreign

embassy if that sign tends to bring that foreign government into ‘public odium’ or

‘public disrepute.’ ” This provision was content based, because whether a sign

was permitted depended upon whether it was “critical of the foreign government

or not. One category of speech has been completely prohibited . . . .” (Id. at

pp. 318-319.)11 The high court rejected the argument that the provision was

content neutral because the government did not select between viewpoints, but

rather prohibited all signs adverse to a foreign government’s policies: “While this

prevents the display clause from being directly viewpoint-based, . . . it does not

render the statute content-neutral. . . . [A] regulation that ‘does not favor either

side of a political controversy’ is nonetheless impermissible because the ‘First

Amendment’s hostility to content-based regulation extends . . . to prohibition of

public discussion of an entire topic.’ [Citation.] Here the government has

determined that an entire category of speech — signs or displays critical of foreign

governments — is not to be permitted.” (Id. at p. 319.) We find this reasoning


10

The parties dispute whether the rule is viewpoint neutral. We express no

view on this question.
11

This portion of Justice O’Connor’s opinion was joined by only two other

justices: Justices Stevens and Scalia. But Justice Brennan made clear in his
concurring opinion, which was joined by Justice Marshall, that he agreed the
provision was content based and wrote separately to distance himself from other
language discussing the secondary effects of the speech. (Boos v. Barry, supra,
485 U.S. 312, 334 (conc. opn. of Brennan, J.).)

19

persuasive; the Mall has prohibited an entire category of speech — speech that

advocates a boycott. Thus, the Mall’s rule is content based and must be given

strict scrutiny. (Alliance, supra, 22 Cal.4th 352, 365; U.C. Nuclear Weapons Labs

Conversion Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d

1157, 1170.)

The Mall asserts that our decision in Alliance, supra, 22 Cal.4th 352,

supports its position that its rule is not content based, but the Mall’s reliance is

misplaced. In that case, we held that “an ordinance . . . that is directed at activity

involving public solicitation for the immediate donation or payment of funds

should not be considered content based . . . and should be evaluated under the

intermediate scrutiny standard applicable to time, place, and manner regulations,

rather than under the strict scrutiny standard.” (Id. at p. 357.) The ordinance at

issue in Alliance made it unlawful to solicit or beg “ ‘with the purpose of obtaining

an immediate donation of money or other thing of value’ ” in certain areas, such as

near a bank or automated teller machine, or in any public place if the solicitation

was done in an “ ‘aggressive manner.’ ” (Id. at p. 363, italics omitted.)

The Mall argues that “boycotts can be prohibited for the same reason that

the solicitation of funds can be prohibited,” but this argument does not withstand

analysis. In holding that the ordinance in Alliance banning solicitation for

immediate donation or exchange of funds was content neutral, we explained that

the United States Supreme Court used the rule “that a restriction is content neutral

if it is ‘justified without reference to the content of the regulated speech.’

[Citations.]” (Alliance, supra, 22 Cal.4th 352, 367.) This rule does “not require

literal or absolute content neutrality, but instead require[s] only that the regulation

be ‘justified’ by legitimate concerns that are unrelated to any ‘disagreement with

the message’ conveyed by the speech. [Citation.]” (Id. at p. 368.) We then

20

focused on the manner in which a face-to-face solicitation asking for an immediate

donation is conducted. By its very nature, this type of solicitation “may create

distinct problems and risks that warrant different treatment and regulation” than

other forms of speech-related activity. (Id. at p. 357.) Such a solicitation was

“ ‘disruptive of business’ ” because it “ ‘impedes the normal flow of traffic.’ ” (Id.

at p. 369, quoting United States v. Kokinda (1990) 497 U.S. 720, 733-734.)

Additionally, “ ‘[i]n-person solicitation of funds, when combined with immediate

receipt of that money, creates a risk of fraud and duress.’ ” (Alliance, at p. 371,

quoting International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S.

672, 705 (conc. opn. of Kennedy, J.).) The ordinance in Alliance was directed at

the conduct and intrusiveness that face-to-face solicitation for immediate donation

or exchange of funds inherently promotes. We therefore found the ban on certain

solicitations to be content neutral because it was justified by legitimate concerns

that were unrelated to content.

The rule at issue here prohibiting speech that advocates a boycott cannot

similarly be justified by legitimate concerns that are unrelated to content.

Peacefully urging a boycott in a mall does not by its nature cause congestion, nor

does it promote fraud or duress. “[T]he boycott is a form of speech or conduct

that is ordinarily entitled to protection under the First and Fourteenth

Amendments.” (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 907,

fn. omitted.) Our California Constitution provides greater, not lesser, protection

for this traditional form of free speech. (See Gerawan Farming, Inc. v. Lyons,

supra, 24 Cal.4th 468, 491.) Unlike the ordinance in Alliance, the Mall’s rule in

the instant case is not concerned with the inherently intrusive nature of such

speech, but rather with the impact such speech may have on its listeners.

“Handbills . . . ‘depend entirely on the persuasive force of the idea.’ [Citation.]”

21

(DeBartolo Corp. v. Fla. Gulf Coast Trades Council (1988) 485 U.S. 568, 580.)

“The loss of customers because they read a handbill urging them not to patronize a

business . . . is the result of mere persuasion . . . .” (Ibid.) The Mall is concerned

that the speech may be effective and persuade customers not to patronize a store.

But “[l]isteners’ reaction to speech is not a content-neutral basis for regulation.”

(Forsyth County v. Nationalist Movement (1992) 505 U.S. 123, 134 [basing the

amount of a permit fee on the degree of hostility the message would create is a

content-based regulation of speech].) The Mall seeks to prohibit speech

advocating a boycott solely because it disagrees with the message of such speech,

which might persuade some potential customers not to patronize the stores in the

Mall.

The Mall relies heavily on a Court of Appeal decision that also involved a

solicitation of funds and predates our decision in Alliance. H-CHH Associates v.

Citizens for Representative Government (1987) 193 Cal.App.3d 1193, 1203 (H-

CHH), held that a shopping mall properly could prohibit the solicitation of

“ ‘contributions or donations from anyone on center property.’ ” Citing as

authority only a decision of the Third Circuit Court of Appeals (Intern. Soc. for

Krishna v. New Jersey Sports, etc. (3d Cir. 1982) 691 F.2d 155), the Court of

Appeal in H-CHH concluded that “the solicitation of political funds is entirely

incompatible with the normal character and function of the Plaza. The Plaza exists

as a center of commerce . . . . Any activity seeking to solicit political contributions

necessarily interferes with that function by competing with the merchant tenants

for the funds of Plaza patrons.” (H-CHH, supra, 193 Cal.App.3d at p. 1221.)

Although as noted above, solicitations for immediate donations may be

restricted based upon “the inherently intrusive and potentially coercive nature of

that kind of speech” (Alliance, supra, 22 Cal.4th 352, 373), the decision in H-CHH

22

was incorrect that solicitations of funds may be prohibited simply because they

compete with the shopping center’s merchants. Relying upon the fact that a

solicitation of funds competes with the shopping center merchants, as did the court

in H-CHH and as does the Mall in this case, would lead to the conclusion that all

solicitations of funds may be prohibited, even those that are not inherently

intrusive or potentially coercive. Such a restriction would be too broad.12

We conclude, therefore, that the Mall’s rule prohibiting all speech that

advocates a boycott is content based and thus is subject to strict scrutiny.

(Alliance, supra, 22 Cal.4th 352, 365.) Strict scrutiny for purposes of the federal

Constitution means that a content-based speech restriction must be “necessary to

serve a compelling state interest, and . . . narrowly drawn to achieve that end.”

(Arkansas Writers’ Project, Inc. v. Ragland (1987) 481 U.S. 221, 231.) The right

to free speech in shopping centers that constitute public fora under the California

Constitution deserves no less protection. In order to ensure that regulations of

speech are not “based on hostility ― or favoritism ― towards the underlying

message expressed’ ” (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S.

622, 642), a content-based rule limiting expression in a shopping center that

constitutes a public forum must be necessary to serve a compelling interest and be

narrowly drawn to achieve that end.

The Mall’s rule prohibiting speech that advocates a boycott cannot

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.


12

We disapprove the decision in H-CHH Associates v. Citizens for

Representative Government, supra, 193 Cal.App.3d 1193, to the extent it states a
contrary view.

23

Urging customers to boycott a store lies at the core of the right to free speech.

(NAACP v. Claiborne Hardware Co., supra, 458 U.S. 886, 911 [“boycott clearly

involved constitutionally protected activity”].) “The safeguarding of these rights

to the ends that men may speak as they think on matters vital to them and that

falsehoods may be exposed through the processes of education and discussion is

essential to free government. Those who won our independence had confidence in

the power of free and fearless reasoning and communication of ideas to discover

and spread political and economic truth.” (Thornhill v. Alabama, supra, 310 U.S.

88, 95.) The fact that speech may be convincing is not a proper basis for

prohibiting it. The right to free speech “extends to more than abstract discussion,

unrelated to action. The First Amendment is a charter for government, not for an

institution of learning. ‘Free trade in ideas’ means free trade in the opportunity to

persuade to action, not merely to describe facts. [Citations.]” (Thomas v. Collins

(1945) 323 U.S. 516, 537.) The Mall cites no authority, and we are aware of none,

that holds that a store has a compelling interest in prohibiting this traditional form

of free speech.

A shopping mall is a public forum in which persons may reasonably

exercise their right to free speech guaranteed by article I, section 2 of the

California Constitution. 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.

24

CONCLUSION

We hold that, under California law, Fashion Valley Mall may not maintain

and enforce against the Union its rule 5.6.2, which prohibits “[u]rging, 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.”

MORENO, J.




WE CONCUR: GEORGE, C. J.
KENNARD,

J.

WERDEGAR,

J.




25












DISSENTING OPINION BY CHIN, J.

I dissent.

By a bare four-to-three majority, Robins v. Pruneyard Shopping Center

(1979) 23 Cal.3d 899 (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


1

Courts have not been consistent in giving this case a shorthand name. For

example, the plurality, concurring, and dissenting opinions in Golden Gateway
Center v. Golden Gateway Tenants Assn.
(2001) 26 Cal.4th 1013 (Golden
Gateway
) called it Robins for short. But because the majority here calls it
Pruneyard, I will do so also.

1



businesses on the premises to do business. Urging a boycott of those businesses

contradicts the very purpose of the shopping center’s existence. It is wrong to

compel a private property owner to allow an activity that contravenes the

property’s purpose.

I. THE FACTS

Fashion Valley Mall, LLC (Fashion Valley), owns a large shopping mall in

San Diego (the mall). Fashion Valley permits expressive activities inside the mall

by those who apply for a permit and agree to abide by its regulations. An

applicant for a permit must state the purpose of the proposed expressive activity,

submit a copy or a description of any materials and signs to be used, list the

participants, provide a $50 refundable cleaning deposit, and purchase insurance as

necessary. Additionally, pursuant to Fashion Valley’s rule 5.6.2 (rule 5.6.2), the

applicant must agree to abstain from “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.”

In October 1998, approximately 30 members and supporters of the Graphic

Communications International Union (Union) gathered outside the Robinsons-

May department store at the mall to protest actions taken by The San Diego

Union-Tribune newspaper. The Union decided to stage the protest there because

the store advertises in the newspaper and is located not far from the newspaper’s

premises. The protestors distributed a handbill addressed, “Dear customer of

Robinsons-May,” that outlined the Union’s grievances against the newspaper.

The handbill made clear “[t]o the employees of Robinsons-May . . . [the] dispute

is with The San Diego Union-Tribune. We are not asking you to cease working for

your employer.” The Union encouraged patrons and employees to call the

newspaper’s chief executive officer. The handbill stated that “Robinsons-May

2



advertises with the Union-Tribune.” After about 15 minutes, a representative of

Fashion Valley approached the protestors, explained that a permit was required for

expressive activity, and told them to leave the premises, which they did.

Later, instead of applying for a permit, the Union filed a charge with the

National Labor Relations Board (Board) alleging that Fashion Valley had violated

section 8(a)(1) of the National Labor Relations Act (29 U.S.C. § 158(a)(1)), which

makes it an unfair labor practice to “interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in section 7” of the act. That section

guarantees “the right to self-organization, to form, join, or assist labor

organizations, to bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection.” (29 U.S.C. § 157.) An

administrative law judge, and later the Board, held that Fashion Valley did violate

section 8(a)(1). The Board ordered Fashion Valley to rescind rule 5.6.2.

Fashion Valley petitioned the District of Columbia Circuit to review the

Board’s decision. The court “h[e]ld that whether Fashion Valley violated the

[National Labor Relations Act] depends upon whether it had the right, under

California law, to maintain and enforce its anti-boycott rule.” (Fashion Valley

Mall, LLC. v. N.L.R.B. (D.C. Cir. 2006) 451 F.3d 241, 242 (Fashion Valley).)

Pursuant to California Rules of Court, former rule 29.8 (now rule 8.548), it

requested us to answer the following question: “Under California law may

Fashion Valley maintain and enforce against the Union its Rule 5.6.2?” (Fashion

Valley, supra, at p. 246.) We granted the request. Later, we permitted the Union

to intervene in the action. (Code Civ. Proc., § 387, subd. (a).)

3



II. DISCUSSION

The issue here is straightforward: Does the California Constitution compel

the owner of a private shopping center to allow persons on its property to urge

potential customers to boycott businesses within the center? Saying yes, the

majority relies primarily on Pruneyard, supra, 23 Cal.3d 899. To place this issue

in perspective, I first provide a historical review. Then I will explain why we

should overrule Pruneyard. Finally, I will show that Pruneyard, even if still

considered the law in California, is entirely distinguishable.

A. Historical Review

At one time, both this court and the United States Supreme Court held that,

in some situations, constitutional free speech rights existed on private property.

(E.g., Food Employees v. Logan Plaza (1968) 391 U.S. 308 (Logan) [private

shopping center]; Marsh v. Alabama (1946) 326 U.S. 501 (Marsh) [company

town]; Diamond v. Bland (1970) 3 Cal.3d 653 (Diamond I) [private shopping

center]; In re Lane (1969) 71 Cal.2d 872 (Lane) [stand-alone grocery store];

Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union

(1964) 61 Cal.2d 766 (Schwartz-Torrance) [private shopping center].) Because

both the United States and the California Constitutions seemed to be the same in

this regard, this court did not clearly establish which Constitution it relied on in

finding free speech rights. We treated the two Constitutions as essentially

interchangeable. For example, our opinion in Schwartz-Torrance, supra, at pages

771-773, relied in part on Marsh, as well as cases from other states, and our

opinions in Lane, supra, at pages 874-877, and Diamond I, supra, at pages 658-

660, relied heavily on Marsh and Logan. As of 1970, our jurisprudence was

consistent with high court jurisprudence in this area.

4



All this changed in the decade of the 1970’s regarding private shopping

centers. In two decisions, the United States Supreme Court reversed Logan,

supra, 391 U.S. 308, and held that no free speech rights exist in private shopping

centers under the United States Constitution. (Hudgens v. NLRB (1976) 424 U.S.

507 (Hudgens); Lloyd Corp. v. Tanner (1972) 407 U.S. 551 (Lloyd Corp.).) As

we recently explained, the Hudgens court “held that a union had no federal

constitutional right to picket in a shopping center because the actions of the private

owner of the shopping center did not constitute state action.” (Golden Gateway,

supra, 26 Cal.4th at p. 1019 (plur. opn.).)

The question whether the new high court decisions affected California law

arose promptly. Even before the second of these decisions, we reconsidered our

decision in Diamond I, supra, 3 Cal.3d 653, in a second case of the same name. In

Diamond v. Bland (1974) 11 Cal.3d 331 (Diamond II), we followed the high court

and held that “defendants’ private property interests outweigh plaintiffs’ own

interests in exercising First Amendment rights in the manner sought herein.” (Id.

at p. 335.) We noted that “[o]ur prior holding in [Diamond I] was based primarily

upon our interpretation of the rationale of two cases of the United States Supreme

court, namely, Marsh v. Alabama, 326 U.S. 501, and Food Employees v. Logan

Plaza, 391 U.S. 308.” (Id. at pp. 333-334.) Diamond II was decided by a vote of

four to three. Justice Burke authored the majority opinion and was joined by

Chief Justice Wright and Justices McComb and Clark. Justice Mosk, the author of

Diamond I, dissented in Diamond II and was joined by Justice Tobriner and, in

part, Justice Sullivan. Justice Mosk would have reaffirmed the holding of

Diamond I but grounded it solely on California constitutional law.

Our adherence to high court jurisprudence in this area did not last long.

Shortly after our 1974 decision in Diamond II, supra, 11 Cal.3d 331, the

5



composition of this court changed. This change led, in 1979, to another four-to-

three decision. In Pruneyard, supra, 23 Cal.3d 899, we overruled Diamond II,

supra, 11 Cal.3d 331, and effectively reinstated Diamond I, supra, 3 Cal.3d 653.

The majority opinion, authored by Justice Newman and joined by Chief Justice

Bird and Justices Tobriner and Mosk, relied heavily on Justice Mosk’s dissenting

opinion in Diamond II. It noted that the California Constitution uses different

language than does the United States Constitution in guaranteeing free speech

rights. California Constitution, article I, section 2, subdivision (a) provides:

“Every person may freely speak, write and publish his or her sentiments on all

subjects, being responsible for the abuse of this right. A law may not restrain or

abridge liberty of speech or press.” The First Amendment to the United States

Constitution more concisely protects “the freedom of speech.”

Pruneyard held “that the soliciting at a shopping center of signatures for a

petition to the government is an activity protected by the California Constitution.”

(Pruneyard, supra, 23 Cal.3d at p. 902.) More generally, it stated that the

California Constitution “protect[s] speech and petitioning, reasonably exercised, in

shopping centers even when the centers are privately owned.” (Id. at p. 910.)

Justice Richardson, joined by Justices Clark and Manuel dissented. (Id. at pp.

911-916.) The United States Supreme Court later affirmed Pruneyard (sub nom.

Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74), but only to the extent

of holding that federal law did not prevent California from providing greater

speech rights on private shopping centers than the federal Constitution provides.

As I show in the next section, history has not been kind to the majority

opinion in Pruneyard.

6



B. Pruneyard Revisited

Pruneyard, supra, 23 Cal.3d 899, was controversial when decided. In the

three decades since then, it has received scant support and overwhelming rejection

around the country. As the 2001 plurality opinion in Golden Gateway noted,

“most of our sister courts interpreting state constitutional provisions similar in

wording to California’s free speech provision have declined to follow

[Pruneyard]. [Fn. omitted.] Indeed, some of these courts have been less than kind

in their criticism of [Pruneyard].” (Golden Gateway, supra, 26 Cal.4th at pp.

1020-1021.)2 The opinion fully supported these statements with citations to

decisions from the many jurisdictions that have considered but rejected

Pruneyard, and the few that have followed its lead to a limited extent. I need not

repeat those citations. (Golden Gateway, supra, 26 Cal.4th at pp. 1021-1022, fn.

5.)

As of the time we decided Golden Gateway, the following states, many

with constitutional free speech language essentially identical to California’s, had

rejected any form of a Pruneyard approach regarding shopping centers and free

speech rights: Arizona, Connecticut, Georgia, Michigan, Minnesota, New York,

North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, and Wisconsin.

2

For example, the New York Court of Appeal, in an opinion that found no

right to free speech in a privately owned shopping center under a state
constitutional free speech provision that is essentially identical to California’s,
described this court’s “4-3 decision” in Pruneyard as “hardly persuasive authority.
That court, in overruling its own contrary precedent only five years old [citing
Diamond II, supra, 11 Cal.3d 331], simply said that the California Constitution
protected speech and petitioning at private shopping centers. There is not much
analysis and only tangential discussion, if it can be called that, of the State action
question. It is evident that the result in [Pruneyard] was dictated by ‘the accident
of a change of personalities in the Judges of [the] court’ . . . .” (SHAD Alliance v.
Smith Haven Mall
(N.Y. 1985) 488 N.E.2d 1211, 1215, fn. 5.)

7



(See Golden Gateway, supra, 26 Cal.4th at pp. 1020-1021 & fn. 5; United Food v.

Crystal Mall Associates (Conn. 2004) 852 A.2d 659, 667-668 (United Food);

Annot., Validity, Under State Constitutions, of Private Shopping Center’s

Prohibition or Regulation of Political, Social, or Religious Expression or Activity

(1997) 52 A.L.R.5th 195.) Nevertheless, the Golden Gateway court followed

Pruneyard as the law of California. The plurality, which I joined, did so

reluctantly, and only due to principles of stare decisis. (Golden Gateway, supra,

26 Cal.4th at p. 1022.)

In the six years since we decided Golden Gateway, supra, 26 Cal.4th 1013,

we have become yet more isolated. No new state has followed our lead. Two

more states have refused to follow the Pruneyard approach: Hawaii and Iowa.

(State v. Viglielmo (Hawaii 2004) 95 P.3d 952; City of West Des Moines v. Engler

(Iowa 2002) 641 N.W.2d 803.) Moreover, as I explain, the few states that

previously adopted an approach like Pruneyard are generally retreating.3

I need not review all of the cases because three years ago the Connecticut

Supreme Court did so. (United Food, supra, 852 A.2d 659, 667-668.) In United

Food, the court unanimously refused to reconsider its earlier decision of Cologne

v. Westfarms Associates (Conn. 1984) 469 A.2d 1201 (Cologne), which had

rejected Pruneyard even though Connecticut’s constitutional free speech

provisions are essentially identical to California’s. (United Food, supra, 852 A.2d


3

Additionally, the Supreme Courts of Illinois, Nebraska, and Nevada have

cited but declined to follow the Pruneyard approach in various free speech
contexts. (People v. DiGuida (Ill. 1992) 604 N.E.2d 336, 340, 342-347; Dossett v.
First State Bank, Loomis
(Neb. 2001) 627 N.W.2d 131, 138-139; S.O.C., Inc. v.
Mirage Casino-Hotel
(Nev. 2001) 23 P.3d 243, 250.)

8



659.)4 It explained that “[s]ince the decision in Cologne, courts in other

jurisdictions that have considered this issue overwhelmingly have chosen not to

interpret their state constitutions as requiring private property owners, such as

those who own large shopping malls, to permit certain types of speech, even

political speech, on their premises.” (United Food, at p. 667.) It summarized the

law that most of the country has adopted: “Under Cologne, as in the

overwhelming majority of our sister jurisdictions, the size of the mall, the number

of patrons it serves, and the fact that the general public is invited to enter the mall

free of charge do not, even when considered together, advance the plaintiff’s cause

in converting private action into government action.” (Id. at p. 673.)

As explained in United Food, supra, 852 A.2d at pages 668-670, only four

other states (Colorado, Massachusetts, New Jersey, and Washington) retain any

form of independent state grounds in this area. Washington has very narrowly

confined its original independent state ground decision. (Southcenter Joint

Venture v. National Democratic Policy Com. (Wn. 1989) 780 P.2d 1282; see the

discussions in Golden Gateway, supra, 26 Cal.4th at p. 1021, fn. 5; United Food,

supra, 852 A.2d at pp. 668, 669 & fns. 13, 16; and State v. Viglielmo, supra, 95

P.3d at pp. 964-965.) Regarding Massachusetts, the Connecticut Supreme Court

explained, “ ‘The Massachusetts decision was expressly limited to the solicitation

of signatures needed by political candidates for access to the ballot and relied, not

upon its freedom of speech provision, but upon a state constitutional guarant[ee]


4

Article I, section 4, of the Connecticut Constitution provides: “Every

citizen may freely speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that liberty.” Article I, section 5, of that Constitution
provides: “No law shall ever be passed to curtail or restrain the liberty of
speech . . . .” (See United Food, supra, 852 A.2d at p. 660, fns. 3, 4.)

9



of an equal right to elect officers and to be elected, for public employments.

[Citation.]’ ” (United Food, supra, 852 A.2d at p. 669, quoting the court’s earlier

decision in Cologne, supra, 469 A.2d 1201.) Colorado recently permitted a

shopping center to adopt substantial restraints on the exercise of free speech on its

property despite its earlier Pruneyard-like stance. (Robertson v. Westminster Mall

Co. (Colo.Ct.App. 2001) 43 P.3d 622.) That leaves New Jersey; and even that

state has not, to my knowledge, carried its jurisprudence to the extreme the

majority is leading California.

The time has come to recognize that we are virtually alone, and that

Pruneyard was ill-conceived. Oregon originally had its own version of

Pruneyard, albeit one based on a different constitutional provision. (Lloyd

Corporation v. Whiffen (Or. 1993) 849 P.2d 446.) That decision, also by a four-

to-three vote, relied in part on “the decision by the California Supreme Court in

[Pruneyard] . . . .” (Id. at p. 454.) Later the Oregon Supreme Court concluded

that Lloyd Corporation v. Whiffen, supra, 849 P.2d 446, was erroneous and

“disavowed” it. (Stranahan v. Fred Meyer, Inc. (Or. 2000) 11 P.3d 228, 243; see

Golden Gateway, supra, 26 Cal.4th at p. 1021, fn. 5.) It also refused to find free

speech rights on private property under the Oregon Constitution’s free speech

provision, which, like Connecticut’s, is essentially identical to California’s.

(Stranahan v. Fred Meyer, Inc., supra, at pp. 243-244, fn. 19.)5 We should do

what Oregon did and disavow Pruneyard.


5

Article I, section 8, of the Oregon Constitution provides: “No law shall be

passed restraining the free expression of opinion, or restricting the right to speak,
write, or print freely on any subject whatever, but every person shall be
responsible for the abuse of this right.” (See Stranahan v. Fred Meyer, Inc.,
supra, 11 P.3d at p. 231, fn. 3.)

10



In Lloyd Corp., the high court distinguished its earlier decision of Marsh,

supra, 326 U.S. 501, which involved a company town. It explained that Marsh

“involved the assumption by a private enterprise of all of the attributes of a state-

created municipality and the exercise by that enterprise of semi-official municipal

functions as a delegate of the State. In effect, the owner of the company town was

performing the full spectrum of municipal powers and stood in the shoes of the

State.” (Lloyd Corp., supra, 407 U.S. at p. 569, fn. omitted.) But a shopping

center is different from a company town. “[P]roperty [does not] lose its private

character merely because the public is generally invited to use it for designated

purposes. Few would argue that a free-standing store, with abutting parking space

for customers, assumes significant public attributes merely because the public is

invited to shop there. Nor is size alone the controlling factor. The essentially

private character of a store and its privately owned abutting property does not

change by virtue of being large or clustered with other stores in a modern

shopping center.” (Ibid.) I, along with the many jurisdictions that have followed

the high court, agree.

As the plurality opinion in Golden Gateway explained, principles of stare

decisis should make us cautious before we overrule a previous case. There should

be a special justification for doing so. (Golden Gateway, supra, 26 Cal.4th at p.

1022.) But we do sometimes overrule our prior decisions, and appropriately so.

In this case it would be entirely proper to do so, especially in light of our

increasing isolation in the six years since Golden Gateway was decided. The

Pruneyard court itself ignored stare decisis. It overruled a decision of this court

that was only five years old at the time. Why should a decision that overruled a

recent decision, and that identified nothing that occurred in the intervening years

to justify the action, be sheltered from reconsideration? In essence, there were two

11



four-to-three decisions in the 1970’s that reached opposite results. Indeed, of the

11 justices who participated in Diamond II, supra, 11 Cal.3d 331, or Pruneyard,

supra, 23 Cal.3d 899, or both, a majority of six followed or would have followed

the high court (Chief Justice Wright and Justices McComb, Burke, Clark,

Richardson, and Manuel), and only five urged or joined what would become the

Pruneyard approach (Chief Justice Bird, and Justices Tobriner, Mosk, Sullivan,

and Newman). I would join the majority of six, as have most of the jurisdictions

that have considered the question.

Moreover, the Pruneyard court made no effort to find anything in the text

of article I, section 2, subdivision (a) of the California Constitution, its historical

sources, or the process that led to its adoption, that suggests any intent to extend

its terms to private property. Instead, as the Wisconsin Supreme Court observed

in a case that rejected Pruneyard even though Wisconsin’s constitutional free

speech provision is essentially identical to California’s, “the majority [in

Pruneyard] did not analyze the constitutional sections, but rather summarily stated

the protections granted by those sections. It appears to be more a decision of

desire rather than analytical conviction.” (Jacobs v. Major (Wis. 1987) 407

N.W.2d 832, 841.)6

I do not denigrate free speech rights. As the New York Court of Appeal

stated in its opinion rejecting Pruneyard, “the right to free expression is one of this

Nation’s most cherished civil liberties.” (SHAD Alliance v. Smith Haven Mall,


6

Article I, section 3, of the Wisconsin Constitution provides: “Every person

may freely speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that right, and no laws shall be passed to restrain or
abridge the liberty of speech or of the press.” (See Jacobs v. Major, supra, 407
N.W.2d at p. 833, fn. 1.)

12



supra, 488 N.E.2d at p. 1212; see also Kasky v. Nike, Inc. (2002) 27 Cal.4th 939,

970-977 (dis. opn. of Chin, J.).) But free speech rights and private property rights

can and should coexist. The last 30 years have not seen a significant diminution

of free speech opportunities in the many jurisdictions that have followed the high

court’s lead regarding private property. The Union here is not without recourse if

it wants to urge a lawful boycott of any business or engage in any other protected

freedom of expression. It has plenty of outlets to exercise its free speech rights. If

it wants to picket, it simply has to do so on public property or seek permission

from private property owners. The Union can exercise its free speech rights, for

example, just outside the shopping center, including near the entrances.

Additionally, and especially today with the advent of the Internet and other forms

of mass communication, “other public forums [are available] for the distribution

and dissemination of . . . ideas.” (Diamond II, supra, 11 Cal.3d at p. 334.) But I

would find no right to engage in speech activity on private property over the

owner’s objection.

13



C. Pruneyard Distinguished

Even if we stubbornly maintain our position of “magnificent isolation”7 in

the face of this tide of history, we should not carry Pruneyard to the extreme of

forbidding private property owners from controlling expressive activity on their

property — urging a boycott of its tenants — that is inimical to the purpose for

which the property is being used. Pruneyard is readily distinguishable.

Assuming free speech rights exist in shopping centers, the fact remains that

they are not Hyde Park in London, Central Park in New York, or the National

Mall in Washington, D.C., areas that are quintessential public free speech zones.

Shopping centers are private property dedicated to doing business. Their owners

should not have to permit all expressive activity that the California and United

States Constitutions protect in public places. A shopping center owner should be

allowed to enforce reasonable restrictions to protect its business activities even if

the government could not impose similar restrictions. Rule 5.6.2 is such a

restriction.

In Pruneyard, the activity the majority compelled a shopping center owner

to permit on its property was the soliciting of signatures for a petition to the

government. (Pruneyard, supra, 23 Cal.3d at p. 902.) Likewise, in Diamond I,

the activity was “securing signatures on two anti-pollution initiative petitions.”

(Diamond I, supra, 3 Cal.3d at p. 655.) Soliciting petition signatures, and much

other free speech activity, although perhaps not furthering the shopping center’s

business, is fully compatible with that business. The same is not true here. The

7

The court in Andersen v. United States (9th Cir. 1956) 237 F.2d 118, 127,

so described the position of the two jurisdictions that adopted or followed the
infamous “product rule” for insanity stated in Durham v. United States (D.C. Cir.
1954) 214 F.2d 862.

14



purpose of a shopping center is to provide a place where the tenants, i.e., the

individual businesses, may do business. Urging a boycott of a tenant’s business is

antithetical to that purpose. We should not compel shopping center owners to

permit activity that interferes with the purpose for the center’s existence.

Pruneyard’s own analysis permits this conclusion. “By no means do we

imply that those who wish to disseminate ideas have free rein. . . . [A]s Justice

Mosk stated in Diamond II, ‘ . . . A handful of additional orderly persons

soliciting signatures and distributing handbills in connection [with the shopping

center], under reasonable regulations adopted by defendant to assure that these

activities do not interfere with normal business operations (see Diamond [I] at p.

665) would not markedly dilute defendant’s property rights.’ (11 Cal.3d at p. 345

(dis. opn. of Mosk, J.).)” (Pruneyard, supra, 23 Cal.3d at pp. 910-911, italics

added.)

Diamond I was also limited in its reach. We stressed that “[i]t bears

repeating that no evidence was presented to the trial court that plaintiffs’ activities

actually interfered with the normal business operations of the [shopping center].

Plaintiffs do not contend that they are entitled to use private property for the

dissemination of ideas without limitations imposed by reasonable regulations

designed to protect the business activities of the Center. . . . [¶] We impose no

unrealistic burden on the operators of shopping centers in insisting that their

control over First Amendment rights [obviously, now limited to free speech rights

under the California Constitution] be exercised, if at all, through reasonable

regulations calculated to protect their business interests rather than through

absolute bans on all nonbusiness-related activities. Shopping centers . . . are not

incapable of regulating permissible activities.” (Diamond I, supra, 3 Cal.3d at p.

665, fn. omitted, italics added.)

15



A reasonable interpretation of these decisions, and one that would at least

nudge this court toward the judicial mainstream, is that shopping center owners

may impose reasonable regulations to protect their business interests, and that rule

5.6.2 is such a reasonable regulation. Compelling property owners to permit use

of their property that would hinder business success would markedly dilute their

property rights. Fashion Valley should at least be able to protect its business

interests by enforcing rule 5.6.2.

It is true that two old cases that predate Hudgens, supra, 424 U.S. 507,

Lloyd Corp., supra, 407 U.S. 551, and Diamond II, supra, 11 Cal.3d 331, involved

boycotts. (Lane, supra, 71 Cal.2d 872; Schwartz-Torrance, supra, 61 Cal.2d 766.)

It is also true that the majority opinion in Pruneyard cited those cases with

approval. (Pruneyard, supra, 23 Cal.3d at pp. 908-909.) But the fact remains that

they were based in large part on federal law that has since been discredited, and

the belief that federal and state constitutional law coincided in this area.

Pruneyard should at least be interpreted on its facts and its holding. It cannot

somehow have revalidated old cases that had different facts and were decided

under a legal landscape that is now obsolete.

Lane involved “an individual grocery store.” (Lane, supra, 71 Cal.2d at p.

873.) But recent Court of Appeal decisions have definitively held that Pruneyard

does not extend to stand-alone stores like the one in Lane. (Albertson’s, Inc. v.

Young (2003) 107 Cal.App.4th 106 [grocery store]; Trader Joe’s Co. v.

Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425 [retail store]; see also

Waremart Foods v. N.L.R.B. (D.C. Cir. 2004) 354 F.3d 870 [grocery store].)

These cases found Pruneyard’s citation of Lane and Schwartz-Torrance not

dispositive. As the Alberston’s, Inc. court noted in refusing to follow Lane, “we

are not aware of any legal principle by which a court, years after rendering a

16



decision, can retroactively alter its ratio decidendi.” (Albertson’s, Inc., supra, at p.

123; see also Trader Joe’s Co., supra, at p. 436 [Pruneyard’s reference “to Lane

was brief and collateral”].)

Today’s majority opinion carefully says nothing casting doubt on the recent

cases involving stand-alone stores, and they are surely correct. But if the older

cases cited in Pruneyard are no longer authoritative in that respect, why should

they be any more authoritative in this respect? In fact, they are no longer

authoritative at all. If we are to preserve Pruneyard, we should at least interpret it

on its own, and not be bound by ancient cases based on law that has long since

disappeared.

The majority is also inconsistent in its treatment of First Amendment law.

It rejects First Amendment law entirely as it relates to private property — law that

is directly on point here — but then it relies heavily on First Amendment cases

that involve restrictions the government has placed on speech. (Maj. opn., ante, at

pp. 19-24.) It cites the federal strict scrutiny test that applies to governmental

restrictions and that requires the government to show the restriction serves a

compelling state interest. (Id. at p. 23.) It relies on, and quotes selectively from,

Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 642, which says,

“ ‘The government may not regulate [speech] based on hostility — or

favoritism — towards the underlying message expressed.’ ” (Italics added; see

maj. opn., ante, at p. 23.) It then asserts, with no apparent awareness of the

distinction — vital under the First Amendment — between governmental action

and actions by private property owners, that the same rules apply here. (Ibid.)

The strict scrutiny test that applies to the government has no application to

action by private landowners involving their own property. Even if it did, it would

have to be adapted to recognize the fact that no governmental action is involved.

17



The compelling state interest test would have to yield to some kind of “compelling

landowner interest” test. A property owner can assert its own interests only, not

the state’s. If that test applied here, it would be met. Furthering business on its

private property is not only a compelling interest, it is the property owner’s

primary concern; doing business is the reason the shopping center exists. In

implementing rule 5.6.2, Fashion Valley is merely preventing persons from using

its property to urge potential patrons not to do business with its tenants. The

Union may urge a boycott if it wishes, just not on private property without

permission.

In finding no compelling interest, the majority merely asserts that the right

of persons to use property they do not own is more compelling than the

landowner’s right to use its own property for the very purpose it exists. (See maj.

opn., ante, at p. 23.) I would instead give some priority to the property’s owner.

The bankruptcy of the majority’s position is shown by its further assertion that

“[t]he Mall cites no authority, and we are aware of none, that holds that a store has

a compelling interest in prohibiting this traditional form of free speech.” (Maj.

opn., ante, at p. 24.) Good reason exists for this lack of authority. Because most

of the country, including the United States Supreme Court, rejects the very notion

of free speech rights on private property, the issue never arises. Only in California

is the issue relevant. The only tradition that is relevant to this case is the tradition,

followed in most of the country, of finding no free speech rights on private

property. The majority is trampling on tradition, not following it.

I would find rule 5.6.2 valid even under Pruneyard.

18



III. CONCLUSION

I would answer the certified question the District of Columbia Circuit

posed as follows: Under California law, Fashion Valley may maintain and enforce

against the Union its rule 5.6.2. Additionally, I would overrule Pruneyard, supra,

23 Cal.3d 899. The time has come for this court to join the judicial mainstream.

Accordingly, I dissent.

CHIN,

J.

WE CONCUR:

BAXTER, J.
CORRIGAN, J.

19



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Fashion Valley Mall, LLC v. National Labor Relations Board
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX (on certification pursuant to rule 8.548, Cal. Rules of Court)
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S144753
Date Filed: December 24, 2007
__________________________________________________________________________________

Court:

County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of W. McLin Lines, W. M. Lines; Luce, Forward, Hamitlon & Scripps, Littler Mendelson and
Theodore R. Scott for Petitioner.

Katten Muchin Rosenman, Thomas J. Leanse, Stacey McKee Knight; Law Offices of Jo Anne M. Bernhard
and Jo Anne M. Bernhard for International Council of Shopping Centers and California Business
Properties Association as Amici Curiae on behalf of Petitioner.

Alan Schlosser; Peter Eliasberg; and David Blair-Loy for American Civil Liberties Union of Northern
California, American Civil Liberties Union of Southern California and American Civil Liberties Union of
San Diego and Imperial Counties as Amici Curiae on behalf of Petitioner.


__________________________________________________________________________________

Attorneys for Respondent:

David A. Habenstreit, Anne Marie Lofaso, Arthur F. Rosenfeld, John E. Higgins, Jr., Margery E. Lieber
and Aileen A. Armstrong for Respondent.

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

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







Counsel who argued in Supreme Court (not intended for publication with opinion):

W. M. Lines
Law Offices of W. McLin Lines
3838 Carson Street, Suite 102
Torrance, CA 90503
(310) 316-4749

Thomas J. Leanse
Katten Muchin Rosenman
2029 Century Park East, Suite 2600
Los Angeles, CA 90067
(310) 788-4400

David A. Rosenfeld
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501
(510) 337-1001


Request under California Rules of Court, rule 29.8, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the District of Columbia Circuit. This case presents the following issue: Under California law may Fashion Valley maintain and enforce against the Union its Rule 5.6.2, which allows individuals and organizations to engage in expressive activities on its premises with a permit if they agree to abide by its rules and regulations that prohibit urging consumers to boycott any of the mall's tenants?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 12/24/200742 Cal. 4th 850, 172 P.3d 742, 69 Cal. Rptr. 3d 288S144753Question of Law - Civilcomplete

Parties
1Fashion Valley Mall, Llc (Petitioner)
Represented by William Mclin Lines
Law Offices of W. McLin Lines
3838 Carson Street, Suite 102
Torrance, CA

2Fashion Valley Mall, Llc (Petitioner)
Represented by Theodore R. Scott
Littler Mendelson
501 W. Broadway, Suite 900
San Diego, CA

3National Labor Relations Board (Respondent)
1099 14th Street, Northwest
Washington, DC 20570

Represented by Aileen A. Armstrong
National Labor Relations Board - Appelate Court Branch
1099 Fourteenth Street, N.W.
Washington, DC

4National Labor Relations Board (Respondent)
1099 14th Street, Northwest
Washington, DC 20570

Represented by David Habenstreit
National Labor Relations Board
1099 Fourteenth Street, N.W.
Washington, DC

5National Labor Relations Board (Respondent)
1099 14th Street, Northwest
Washington, DC 20570

Represented by Anne Maarie Lofaso
National Labor Relations Board
1099 Fourteenth Street, N.W.
Washington, CA

6Graphic Communications Conference (Intervener and Respondent)
Represented by David A. Rosenfeld
Weinberg Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA

7Graphic Communications Conference (Intervener and Respondent)
Represented by Richard D. Prochazka
Attorney at Law
P.O. Box 881566
San Diego, CA

8Graphic Communications Conference (Intervener and Respondent)
Represented by Caren Pamela Sencer
Weinberg Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA

9California Labor Federation, Afl-Cio (Amicus curiae)
Represented by Donald C. Carroll
Carroll & Scully, Inc.
300 Montgomery Street, Suite 735
San Francisco, CA

10California Labor Federation, Afl-Cio (Amicus curiae)
Represented by Charles P. Scully
Carroll & Scully, Inc.
300 Montgomery Street, Suite 735
San Francisco, CA

11Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

12International Council Of Shopping Centers (Amicus curiae)
Represented by Thomas J. Leanse
Katten Muchin Rosenman, LLP
2029 Century Park East, 26th Floor
Los Angeles, CA

13International Council Of Shopping Centers (Amicus curiae)
Represented by Stacey Dianne Mckeeknight
Katten Muchin Rosenman, LLP
2029 Century Park East, 26th Floor
Los Angeles, CA

14California Business Properties Association (Amicus curiae)
Represented by Thomas J. Leanse
Katten Muchin Rosenman, LLP
2029 Century Park East, 26th Floor
Los Angeles, CA

15California Business Properties Association (Amicus curiae)
Represented by Jo Anne M. Bernhard
Attorney at Law
2621 "K" Street
Sacramento, CA

16Aclu Foundation Of San Diego & Imperial Counties, Inc. (Amicus curiae)
Represented by John David Blair-Loy
ACLU Foundation of San Diego & Imperial Counties
P.O. Box 87131
San Diego, CA

17Aclu Foundation Of Southern California, Inc. (Amicus curiae)
Represented by Peter J. Eliasberg
ACLU Foundation of Southern California
1616 Beverly Boulevard
Los Angeles, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
DissentJustice Ming W. Chin

Disposition
Dec 24 2007Opinion filed

Dockets
Jul 3 2006Request to answer question of state law filed
  United States Court of Appeals for the District of Columbia Circuit.
Jul 3 2006Received:
  Brief for The National Labor Relations Board, Corrected Brief for Petitioner Fashion Valley Mall, LLC, Corrected Reply Brief for Petitioner Fashion Valley Mall, LLC, Joint Appendix for Fashion Valley Mall, LLC (2 volumes), and Certified copy of the Order.
Jul 24 2006Received:
  Letter from Donald C. Carroll of Carroll & Scully, Inc. dated July 24, 2006
Jul 28 2006Received:
  Letter from Law Offices of W. McLin Lines dated July 27, 2006.
Jul 31 2006Received:
  Letter from Jo Anne M. Bernhard dated 7-27-2006 on behalf of CBPA and ICSC.
Aug 4 2006Received:
  Letter from Littler Mendelson [Petitioner Fashion Valley Mall] dated 8-1-2006, enclosing a copy of Notice of Substitution of Co-Counsel Due to Change In Firm Association Filed with the D.C. Circuit,. for Theodore R. Scott.
Aug 8 2006Received:
  Letter from W.McLin Lines [Petitioner Fashion Valley Mall) dated 8-7-2006 in response to AFL-CIO letter dated 7-24-2006.
Aug 16 2006Letter sent to:
  All counsel enclosing a copy of the grant order as well as the form for certification of interested entities or persons.
Aug 16 2006Request for certification granted
  The request, made pursuant to California Rules of Court, rule 29.8, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the District of Columbia Circuit, is granted. For purposes of briefing and oral argument, Fashion Valley Mall is deemed petitioner to this court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 24 2006Motion for leave to intervene filed
  by Graphic Communications Conference, International Brotherhood of Teamsters, Local 432(M) by counsel David A. Rosenfield of Weinberg, Roger & Rosenfield, and Richard D. Prochazka.
Aug 28 2006Certification of interested entities or persons filed
  William W. McLin Lines and Theodore R. Scott, counsel for Petitioner Fashion Valley Mall
Aug 31 2006Received:
  Letter dated 8-30-2006 from Aileen A. Armstrong, Deputy Associate General Counsel, N.L.R.B., Appellate Court Branch, that any future correspondence should be directed to her as counsel of record in the federal court proceedings.
Sep 7 2006Received:
  Letter from David A. Rosenfield of Weinberg, Roger & Rosenfeld, dated September 6, 2006. (Proof of service received 9-8-2006]
Sep 8 2006Received:
 
Sep 12 2006Received:
  Extension of time to and including September 29, 2006, to file petitioner's opening brief on the merits. (faxed copy) [ Hard copy received 9-13-2006]
Sep 13 2006Request for extension of time filed
  to and including 9-29-2006 to file Petitioner's Opening Brief on the Merits.
Sep 13 2006Extension of time granted
  On application of petitioner and good cause appeairng, it is ordered that the time to serve and file Petitioner's Opening Brief on the Merits is extended to and including September 29, 2006.
Sep 29 2006Notice of intent to rely on CA brief (as opening brief)
  Filed Notice of Intent to Rely on U. S. Court of Appeals Brief [Brief separate] Fashion Valley Mall LLC, Petitioenr by W. McLin Lines, Law Office of W. McLin Lines, retained counsel. Brief filed.
Sep 29 2006Received:
  Petitioner's Joint Appendix (Vols 1 and 2) Two sets.
Oct 2 2006Filed letter from:
  Weinberg, Roger & Rosenfeld dated 9-29-2006 [non-party Graphic Communications Conference, International Brotherhoold of Teamsters, Local 432(M)) re status of proposed intervention.
Oct 5 2006Received:
  Letter from W. McLin Lines dated October 4, 2006, enclosing O+13 copies of the missing page 12 from the petitioner's opening brief [filed with the notice of intent]
Oct 11 2006Motion for leave to intervene granted
  The "motion for leave to intervene on behalf of Graphic Communications Conference, International Brotherhood of Teamsters, Local 432(M)," filed on August 23, August 23, 2006, is granted. The intervener may serve and file an answer brief on the merits on or before November 9, 2006.
Nov 3 2006Request for extension of time filed
  to December 11, 2006, to file Intervenor Graphic Communications Conference, International Brotherhood of Teamsters, Local 432 (M) answer brief on the merits.
Nov 8 2006Extension of time granted
  On application of Intervenor Graphic Communications Conference and good cause appearing, it is ordered that the time to serve and file the Intervenor's Answer Brief on the Merits is extended to and including December 11, 2006.
Dec 8 2006Request for extension of time filed
  to December 30, 2006, to file Intervenor's [Graphic Communications Conference, et al.] Answer Brief on the Merits
Dec 14 2006Extension of time granted
  On application of Intervenor Graphic Communications Conference, International Brotherhood of Teamsters, Local 432(M), and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including December 30, 2006. No further extensions of time are contemplated.
Dec 29 2006Answer brief on the merits filed
  Graphic Communications Conf. etc., intervener David Rosenfeld, Caren Spencer, Richard Prochazka, counsel
Jan 10 2007Request for extension of time filed
  to and including February 5, 2007 to file petitioner's reply brief on the merits. (faxed copy)
Jan 11 2007Request for extension of time filed
  to and including March 5, 2007, to file appellant's reply brief on the merits.
Jan 17 2007Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file the reply brief on the meirts is extended to and including February 17, 2007. No further extensions of time are contemplated.
Feb 16 2007Reply brief filed (case fully briefed)
  Fashion Valley Mall, LLC, petitioner by W. M. Lines of the Law Offices of W. McLin Lines and Co-counsel Theodore R. Scott of Littler Mendelson (White covers received)
Mar 15 2007Received application to file Amicus Curiae Brief
  California Labor Federation, AFL-CIO, in support of Intervenor. by Donald C. Carroll, Counsel
Mar 19 2007Permission to file amicus curiae brief granted
  The application of California Labor Federation,AFL-CIO for permission to file an amicus curiae brief is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 19 2007Amicus curiae brief filed
  California Labor Federation, AFL-CIO, in support of Intervenor by Donald C. Carroll, Counsel
Mar 20 2007Received application to file Amicus Curiae Brief
  Amici Curiae ACLU of Northern California, ACLU of Southern California and ACLU of San Diego and Imperial Counties in support of petitioner (Fashion Valley Mall) CRC 8.25
Mar 21 2007Received application to file Amicus Curiae Brief
  Amici Curiae International Council of Shopping Centers and California Business Properties Association in support of Petitioner Fashion Valley Mall, LLC. CRC 8.25
Mar 29 2007Permission to file amicus curiae brief granted
  The application of American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California and American Civil Liberties Union of San Diego and Imperial Counties for permissions to file an amicus curiae brief in support of Petitioner Fashion Valley Mall, LLC is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 29 2007Amicus curiae brief filed
  ACLU of Northern California, ACLU of Southern California and ACLU of San Diego and Imperial Counties in support of Petitioner Fashion Valley Mall, LL.
Mar 29 2007Permission to file amicus curiae brief granted
  The application of International Council of Shopping Centers and California Business Properties Association for permission to file an amicus curiae brief in support of Petitioner Fashion Valley Mall, LLC is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 29 2007Amicus curiae brief filed
  International Council of Shopping Centers and California Business Properties Association in support of Petitioner Fashion Valley Mall LLC
Apr 5 2007Request for extension of time filed
  to and including April 30, 2007, to file Appellant's Responses to Amicus Curiae Briefs filed by the California Labor Federation, AFL-CIO and the American Civil Liberties Unions of Northern California, Southern California, San Diego and Imperial Counties.
Apr 6 2007Request for extension of time filed
  to and inlcuding April 30, 2007, to file Petitioner's responses to amici curiae briefs.
Apr 6 2007Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file Petitioner's Response to Amicus Curiae Briefs is extended to and including April 30, 2007.
Apr 16 2007Response to amicus curiae brief filed
  Graphic Communications Conference, International Brotherhood of Teamsters, intervenor and respondent by David A. Rosefeld, Caren P. Sencer
Apr 30 2007Response to amicus curiae brief filed
  Petitioner Fashion Valley Mall, LLC to Brief of California Labor Federation, AFL-Cio
Apr 30 2007Response to amicus curiae brief filed
  Petitioner Fashion Valley Mall, LLC to Brief of American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California and American Civil Liberties Union of San Diego and Imperial Counties
Sep 5 2007Case ordered on calendar
  to be argued on October 2, 2007, in Santa Rosa, at 9:00 a.m. special session at the Sonoma Country Day School, 4400 Day School Place, Santa Rosa
Sep 11 2007Filed letter from:
  W. M. Lines, counsel for petitioner Fashion Valley Mall, LLC Request to divide oral argument time: asking to share 10 minutes with amici curiae International Council of Shopping Centers and California Business Properties Association.
Sep 13 2007Order filed
  The request of counsel for petitioner in the above-referenced cause to allow two counsel to argue on behalf of petitioner at oral argument is hereby granted. The request of petitioner to allocate to amici curiae International Council of Shopping Centers et al. 10 minutes of petitioner's 30-minute allotted time for oral argument is granted.
Sep 18 2007Request for Extended Media coverage Filed
  by The California Channel.
Sep 20 2007Request for Extended Media coverage Granted
  The request for extended media coverage, filed September 18, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Sep 25 2007Request for Extended Media coverage Filed
  by The Santa Rosa Press Democrat
Sep 28 2007Request for Extended Media coverage Granted
  The request for extended media coverage, filed by The Santa Rosa Press Democrat on September 25, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 2 2007Cause argued and submitted
 
Dec 24 2007Opinion filed
  We hold that, under California law, Fashion Valley Mall may not maintain and enforce against the Union its rule 5.6.2, which prohibits "[u]rging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores of merchants in the shopping center." Opinion by Moreno, J. -- joined by George, C.J., Kennard, Werdegar, JJ. Dissenting Opinion by Chin, J. -- Baxter, Corrigan, JJ.
Jan 4 2008Request for extension of time filed
  to and including January 17, 2008, to file Appellant's Petition for Rehearing (Filed with permission)
Jan 8 2008Rehearing petition filed
  Petitioner Fashion Valley Mall, LLC Attorney W. M. Lines
Jan 8 2008Application denied
  Petitioner Fashion Valley Mall's application for an extension of time in which to file the petition for rehearing is hereby denied.
Jan 8 2008Received:
  Faxed copy of Appellant's Petition for Rehearing
Jan 9 2008Received:
  Letter dated 1-8-2008 from Amici Curiae International Council of Shopping Centers and California Business Properties Association in support of petitioner's rehearing petition
Jan 11 2008Time extended to consider modification or rehearing
  to and including March 21, 2008
Jan 11 2008Order filed
  The order filed on March 29, 2007, granting the application of the American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California and American Civil Liberties Union of Southern Caifornia and American Civil Liberties Union on San Diego and Imperial Counties to file an amicus brief is amended to read, in its entirety: "The application of American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California and American Civil Liberties Union of San Diego and Imperial Counties for permission to file an amicus curiae brief in support of Intervenor and Respondent Graphic Communications Conference is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief." This order is filed nunc pro tunc as of March 29, 2007, due to clerical error.
Feb 5 2008Filed:
  Letter dated January 8, 2008 from Amici Curiae International Council of Shopping Centers and California Business Properties Association in support of rehearing petition (Filed with permission)
Feb 20 2008Rehearing denied
  Baxter, Chin, and Corrigan, JJ., are of the opinion the petition should be granted.
Mar 4 2008Motion filed (non-AA)
  by Intervenor Graphic Communications Conference' Motion for Order Awarding Fees Pursuant to Code of Civil Procedures Section 1021.5 with Memorandum Points and Authorities in support of Motion. by David A. Rosenfeld, Weinberg Roger & Rosenfeld, counsel.
Mar 14 2008Request for extension of time filed
  to and including March 28, 2008 to file Petitioner's opposition to Intervenor's Motion for Attorneys' Fees
Mar 18 2008Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file the Petitioner's Opposition to Intervenor's Motion for Attorneys' Fees is extended to and including March 28, 2008.
Mar 28 2008Opposition filed
  Petitioner Fashion Valley Mall, LLC's Opposition to Intervenor's Motion for Attorneys' Fees by Theodore R. Scott, Littler Mendelson, P.C., counsel and the Law Offices of W. McLin Lines
Apr 4 2008Request for judicial notice filed (granted case)
  Graphic Communications Conference, International Brotherhood of Teamsters, Local 432(M) by David J. Dow, Littler Mendelson, P.C. (Filed with permission)
Apr 10 2008Filed:
  Response to Opposition to the Intervenor's Motion for Attorneys' Fees by David A. Rosenfeld, Weinberg, Roger & Rosenfeld, counsel
May 14 2008Request for judicial notice granted
  Intervenor's "Request for Court to Take Judicial Notice," filed April 4, 2008, is granted. Intervenor's "Motion for Order Awarding Fees Pursuant to Code of Civil Procedures section 1021.5," filed March 4, 2008, is denied.
May 14 2008Letter sent to counsel: opinion now final
 
May 15 2008Received:
  Letter dated May 13, 2008 from Weinberg Roger & Rosenfeld notifying the court that the District of Columbia Circuit Court of Appeals has affirmed the order of the National Labor Relations Board based upon this court's answer to the certified question in this case. A copy of the court's decision is enclosed.
Oct 6 2008Certiorari denied by U.S. Supreme Court
 

Briefs
Sep 29 2006Notice of intent to rely on CA brief (as opening brief)
 
Dec 29 2006Answer brief on the merits filed
 
Feb 16 2007Reply brief filed (case fully briefed)
 
Mar 19 2007Amicus curiae brief filed
 
Mar 29 2007Amicus curiae brief filed
 
Mar 29 2007Amicus curiae brief filed
 
Apr 16 2007Response to amicus curiae brief filed
 
Apr 30 2007Response to amicus curiae brief filed
 
Apr 30 2007Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
s144753a.pdf (1694314 bytes) - Fashion Valley's opening brief
application/pdf icon
s144753c.pdf (706711 bytes) - Fashion Valley's reply brief
application/pdf icon
s144753d.pdf (1212416 bytes) - (Intervener) Graphics Communications Council's answer brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by Erika Wayne

FACTS: On October 4, 1998, 30 to 40 members of Graphic Communications International Union employed by The San Diego Union-Tribune distributed leaflets to customers entering and exiting the Robinsons-May store at Fashion Valley Mall. The Union members were attempting to persuade customers to boycott Robinsons-May, an advertiser in The Union-Tribune, as part of the Union’s ongoing labor dispute with The Union-Tribune. Within 20 minutes, Mall officials arrived and threatened the Union members with arrest and/or civil litigation if they did not leave the premises. The officials claimed the demonstration violated the Mall’s rule requiring permits for such actions, and prohibiting actions “encouraging in any manner, customers not to purchase the merchandise or services” offered by any of the Mall’s stores. The Union subsequently brought a complaint to the NLRB for infringing its rights under the National Labor Relations Act.

PROCEDURAL POSTURE: The NLRB’s administrative law judge ruled in favor of the Union and ordered the Mall to cease and desist interfering with the Union leafleters’ access to the Mall. The Mall contested the ruling, which was subsequently affirmed, in 2004, by the NLRB in Washington D.C. The Mall then appealed the NLRB’s decision to the U.S. Court of Appeals for the District of Columbia. On June 16, 2006, that Court issued an opinion which certified a single question, governed by California law, to the California Supreme Court. The Supreme Court answered that question here, allowing the Court of Appeals to dispose of the case.

ISSUE: The question answered here is: “Under California law may Fashion Valley [Mall] maintain and enforce against the Union its Rule 5.6.2 [prohibiting speech encouraging a boycott of the Mall’s stores]?” The primary issue raised by the question is whether, under California law, the Mall, which generally allows expressive activity, may prohibit Union members who do not constitute a physical nuisance from urging customers to boycott a store in the Mall.

HOLDING: The Supreme Court held 4-3 that the Mall may not maintain and enforce its Rule 5.6.2, prohibiting speech encouraging customers to boycott the Mall’s stores because it impermissibly interferes with the Union’s right of free speech guaranteed by article I, section 2 of the California Constitution.

ANALYSIS: In reaching its holding, the majority first recapitulated the rule in California that shopping malls are considered public fora for the purposes of free speech rights. Next, the Court determined that strict scrutiny applies to the Mall’s rule because the rule is not content-neutral. When a limitation on speech is not content neutral, the limitation must serve a compelling interest and be narrowly drawn. The Court reasoned that the Mall’s purpose to maximize profits is not compelling compared to the Union’s right to free expression.

The Court relied largely on Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979), which held that a mall could not prohibit students from soliciting support to oppose a U.N. resolution, despite the fact it was unrelated to the business of the mall. The Court pointed out that the U.S. Supreme Court had had the opportunity to overrule Pruneyard in favor of the rights of private property owners, but had chosen not to do so, affirming California’s right to adopt liberty protections broader than those of the U.S. Constitution.

As in Pruneyard, however, the California Supreme Court reiterated that the Mall could place reasonable restrictions on the “time, place, and manner” of free speech exercise, provided the restrictions did not eviscerate the right. The problem with the Mall’s Rule 5.6.2 was that it specifically targeted speech supporting a boycott, and being content based, it could not survive strict scrutiny analysis.

RELATED CASES: Diamond v. Bland, 3 Cal.3d 653, https://scocal.stanford.edu/opinion/diamond-v-bland-27619, Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, https://scocal.stanford.edu/opinion/robins-v-pruneyard-shopping-center-30510, In re Lane, 71 Cal.2d 872, https://scocal.stanford.edu/opinion/re-lane-22702, Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' UNION, 61 Cal.2d 766, https://scocal.stanford.edu/opinion/schwartz-torrance-investment-corp-v-b....

TAGS: free speech, content neutral, secondary boycott, Union speech, California Constitution, Pruneyard.

Annotation by Rob Szykowny.