The California Supreme Court’s astonishingly generous gift to free speech interests, filed Christmas eve, upheld the right of a labor union to enter a shopping mall and single out customers of one of the mall’s stores for  leafleting, and has even wider implications for other speech in malls. Fashion Valley Mall LLC v. National Labor Relations Board is, if viewed narrowly as a union case, entirely consistent with the court’s jurisprudence of more than 40 years.

In 1964, 15 years before the high court first decided, in the well-known case of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 that advocacy on issues unrelated to a mall or its tenants (e.g., Israel and U.N. charges of Zionism) could not, under California’s constitutional protection for speech, be excluded from a main street-scale mall altogether, it held that union picketing against a tenant merchant could not be excluded from a shopping center. Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union, 61 Cal.2d 766.  The rationale was actually best put in a U.S. Supreme Court case reaching the same position four years later:

Business enterprises located in downtown areas would be
subject to on-the-spot public criticism for their practices, but businesses situated in 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.

Food Employees v. Logan Plaza (1968) 391 U.S. 308, 324.

But the majority in Fashion Valley Mall—a bare majority at 4-3— did not narrowly confine its decision to unions picketing or otherwise focusing attention on custormerss of particular merchants.  What it concluded was:

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.

(Emphsis added). The majority reached this broad conclusion by applying what courts have come to call “strict scrutiny” to the mall’s rule that no speech would be permitted on its premises “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 majority, in an opinion written by Justice Moreno and joined by Justices Werdegar and Kennard and Chief Justice George, observed that in applying strict scrutiny,

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. 

But if the mall’s interest in restraining distracting or embarrassing picketing, leafleting, etc. will be from now on characterized as simply “to maximize the profits of its merchants,” will that interest ever be held to trump anyone’s right to free expression, unless the court is willing to hold that union speech rights are somehow more worthy than others?

Dissenting Justice Chin, joined by Justices Baxter and Corrigan,  made no attempt to hide his exasperation with the majority.  The Pruneyard decision, he said, should be simply abandoned as by now almost totally isolated in American law. It should not be worsened by this case, which applied the highest barriers against official censorship to a mall owner’s natural desire to protect its tenants’ legitimate business expectations.  Strict scrutiny was developed to limit government’s ability to suppress particular messages by demanding, among other things, that a compelling governmental interest be shown as justification.  Dropping the “governmental” from the formula applies an alien yardstick to private property values, Chin insisted:

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.  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.” 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.

A small factual irony in the case is that the union was challenging the behavior of another traditional beneficiary of free speech protection—a newspaper that employed its members in its pressroom. Members of the Graphic Communications International Union Local 432-M, which argued that the San Diego Union-Tribune treated them unfairly, leafleted customers of the Robinsons-May store—a major U-T advertiser—at the entrances and exits, asking them to call the paper’s “CEO” and voice their concerns for the alleged unfairness.  The leaflets did not expressly call for a boycott of the store, and were handed out peaceably with no interference with customer traffic.