California constitution protects picketing at malls

[Robert Sheridan]

The US Circuit Court invited the California Supreme court to decide  
whether the California Constitution protected peaceful picketing at  
privately owned shopping malls open to the public, over the objection  
of the mall, such as where picketers urged shoppers not to patronize a  
store or the mall.  The Cal Supremes, 4:3, held that it did.  The news  
report, below, in Fashion Valley Mall v. NLRB.

Shall malls then be thrown open for political campaigning as well?   
The current practice now is that you have to ask the mall for  
permission to hand out leaflets, which permission is not given, this  
being backed by security guards who are often moonlighting police  
officers.

rs
sfls

Merry Christmas, a felony in pc-land...



The opinion:  www.courtinfo.ca.gov/opinions/documents/S144753.PDF.

 From sfgate.com:

Article:State Supreme Court upholds right to picket at malls:/c/a/ 
2007/12/24/BA59U45LU.DTL
Article:State Supreme Court upholds right to picket at malls:/c/a/ 
2007/12/24/BA59U45LU.DTL
SFGate
Back to Article
SFGate
State Supreme Court upholds right to picket at malls

Bob Egelko, Chronicle Staff Writer

Monday, December 24, 2007

(12-24) 12:50 PST SAN FRANCISCO -- A deeply divided California Supreme  
Court today upheld the right of unions and political protesters to  
leaflet shoppers at malls and urge a boycott.

The 4-3 decision was based on the court's landmark 1979 ruling that  
allowed political leafleting at large shopping centers under the state  
constitutional right of free speech. The court said in that ruling  
that a shopping mall was the modern equivalent of a town square or  
community meeting place, where people come to exchange ideas as well  
as spend money.

The U.S. Supreme Court later ruled that the constitutional right of  
free speech applies only to restrictions imposed by the government and  
not by private property owners. But the 1979 ruling remains the law in  
California.

In today's case, lawyers for a San Diego shopping center argued that  
it had the right to protect its tenants' economic interests by  
prohibiting handbills that advocate boycotts of any of its stores.  
Attorneys for Fashion Valley Mall, a complex of more than 200 upscale  
retailers, said the freedom of speech recognized by the court in 1979  
didn't cover statements that attack a shopping center's purpose for  
existing.

But a majority of the court said its rulings even before 1979 required  
shopping centers to allow peaceful picketing on the premises, even  
though it might interfere with profits. As long as the protesters  
don't disrupt a business or physically interfere with shoppers, the  
court said, the right of free speech outweighs the mall's right to  
protect its tenants' profits.

"Urging customers to boycott a store lies at the core of the right to  
free speech," said Justice Carlos Moreno in the majority opinion.

The dissenters, led by Justice Ming Chin, said the court should not  
only uphold the shopping center's ban on consumer boycotts but also  
overturn its 1979 ruling allowing peaceful political activity at  
shopping malls.

"Private property should be treated as private property, not as a  
public free speech zone," said Chin, joined by Justices Marvin Baxter  
and Carol Corrigan. At the very least, he said, the court should allow  
owners of a mall to forbid advocacy of a store boycott, which  
"contradicts the very purpose of a shopping center's existence."

The case arose when members of a Teamsters Union affiliate that was  
involved in a labor dispute with the San Diego Union-Tribune handed  
out leaflets in October 1998 outside the Robinson-May department store  
at the Fashion Valley mall. The leaflets asked shoppers to call the  
newspaper's chief executive, noting that the store advertised in the  
Union-Tribune.

The leafleters were expelled by the shopping center manager because  
they hadn't filled out a permit application promising to abide by the  
mall's rules, including a ban on advocating boycotts. Lawyers in the  
case said most regional shopping centers in California have similar  
rules, which will have to be changed because of today's ruling.

The ruling doesn't directly affect other restrictions on protests at  
shopping centers, including rules enforced at many malls that limit or  
ban picketing during the holiday season, and restrict the location of  
picketers at other times. But David Rosenfeld, a lawyer for the union  
in today's case, said he would argue that courts should take a closer  
look at such restrictions in light of the decision.

The case is Fashion Valley Mall vs. National Labor Relations Board,  
S144753. The ruling is available at www.courtinfo.ca.gov/opinions/documents/S144753.PDF 
.

E-mail Bob Egelko at begelko at sfchronicle.com.

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