Fashion Valley Mall, LLC v. N.L.R.B.

69 Cal.Rptr.3d 288

42 Cal.4th 850

172 P.3d 742

FASHION VALLEY MALL, LLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Graphic Communications International Union, Local 432-M, Real Party in Interest.

No. S144753.

Supreme Court of California.

December 24, 2007.

Law Offices of W. McLin Lines, W.M. Lines, Torrance; Luce, Forward, Hamitlon & Scripps, Littler Mendelson and Theodore R. Scott, San Diego, for Petitioner.

Katten Muchin Rosenman, Thomas J. Leanse, Stacey McKee Knight, Los Angeles; 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, San Francisco; Peter Eliasberg, Los Angeles; 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.

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, Alameda, Caren P. Sencer, Richard D. Prochazka & Associates and Richard D. Prochazka, San Diego, for Real Party in Interest.

Law Offices of Carroll & Scully, Donald C. Carroll and Charles P. Scully II, San Francisco, for California Labor Federation,

AFL-CIO, as Amicus Curiae on behalf of Real Party in Interest.

MORENO, J.

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) 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 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 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, 153 Cal.Rptr. 854, 592 P.2d 341, affirmed sub nomine PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741, 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 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 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, 153 Cal.Rptr. 854, 592 P.2d 341 (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 (193...