Union Right to Leaflet for Consumer Boycott of Mall Tenants Upheld

January 13, 2009 by Beeson Tayer & Bodine

A lengthy fight by a shopping mall owner to prevent unions from handbilling at California malls urging a consumer boycott of a mall tenant has finally ended with a victory for unions. The dispute started when pressroom employees of the San Diego Union- Tribune, who had a labor dispute with the newspaper, distributed leaflets at the Fashion Valley Mall calling for a boycott of a department store tenant because it advertised in the Union-Tribune. Fashion Valley Mall had a policy prohibiting free-speech activity that asked customers to refrain from patronizing any mall tenant. The mall owner summoned the police, who forced the handbillers to leave. The union filed an unfair labor practice with the NLRB, which held that the content- based restriction on the union’s leafleting was unlawful because the activity was protected under California law and the mall’s rules discriminated on the basis of protected union activities. In concluding that the union’s leafleting on the private property of the mall was protected under California law, the NLRB relied on a 1979 California Supreme Court case called Robins v. Pruneyard Shopping Center. In that case, the Court held that the California Constitution’s free speech rights, which are more expansive than those in the U.S. Constitution, extend to privately owned shopping malls. But the Pruneyard Court did not reach the question of whether a mall could prohibit free-speech activity seeking a boycott of one of the mall’s own tenants. Fashion Valley Mall appealed the NLRB’s decision to the Court of Appeals for the District of Columbia, which in turn referred the matter to the California Supreme Court, asking that court to decide the boycott question left open in Pruneyard. In December 2007, the California Supreme Court held that the right to seek a consumer boycott against a mall tenant of a privately owned mall in California is protected under the state Constitution. Fashion Valley Mall, LLC v. NLRB (2007) 42 Cal.4th 850. The Court rejected the mall’s argument that by requiring a permit for expressive activities at the mall it was only imposing a “time, place and manner” restriction, noting that the mall’s rules expressly required the applicant to agree not to ask consumers to refrain from patronizing a tenant – clearly a content-based restriction. But the mall owner was not quite done. It returned to the federal Court of Appeals and argued that the ruling by the state Supreme Court violated its rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. In May 2008, the Court of Appeals refused to consider that argument because it had never before been raised by the mall through years of litigation. Finally, the mall sought review by the United States Supreme Court, which in October declined to hear the case, thus letting stand the ruling of the California Supreme Court. With the final decision in this case, California shopping malls subject to the Pruneyard rule, while they may still insist unions comply with reasonable “time, place and manner” restrictions, may no longer ban union handbillers from mall premises because the union seeks a boycott of a mall tenant.

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