Malls may not regulate content of free speech, says California Supreme Court

SAN FRANCISCO
December 24, 2007 12:16pm

Shopping malls in California may not regulate the content in a free speech protest on mall property, the California Supreme Court says in a 4-3 ruling Monday.

The ruling comes in a case that began in 1998 when members of the Graphic Communications International Union Local 432-M tried to distribute flyers in front of the Robinsons-May department store at the Fashion Valley mall in San Diego

The leaflets noted that Robinsons-May advertised in the San Diego Union-Tribune, where the union represented pressroom workers and had been unsuccessful in negotiating a new contract.

The handouts “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 newspaper’s ‘CEO,’ listing his name and telephone number,” the court ruling says.

But within 15 or 20 minutes, Mall officials arrived on the scene to stop the leafleting, telling 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 sued or arrested if they didn’t leave.

While a mall has the right to regulate where and when a free speech activity like leaflet distribution can take place, it cannot regulate what is said or written, the California Supreme Court says in its ruling Monday.

“We hold that the right to free speech granted by … the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall,” says the majority opinion.

“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,” says the majority opinion, written by Associate Justice Carlos Moreno.

In the dissent, written by Associate Justice Ming Chin, the court minority contends, “private property should be treated as private property, not as a public free speech zone.”

The dissent contends Americans have no free speech rights when on private property and that a previous California Supreme Court decision upholding free speech at a San Jose shopping center is at odds with the rest of the country.

“A shopping center exists for the individual 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,” says the dissent.

The majority opinion was signed by Chief Justice Ronald George and Associate Justices Carlos Moreno, Joyce Kennard, and Kathryn Werdegar

The minority opinion was signed by Associate Justices Ming Chin, Marvin Baxter and Carol Corrigan.

Comments on this story

Brian 12/25/07 9:29 AM
Should the mall appeal to the US Supreme Court, they shouldl find a sympathetic ear. This nonsense is a clear violation of property rights.

a concerned citizen 12/25/07 2:59 PM
It's about time. Private property that's truly private (ex: your home) isn't the same thing as private property that's open to the public. If it's generally open to the public, then they shouldn't be allowed to restrict your free speech rights.