Read this alert online.
Sean W. Southard
San Diego
ssouthard@
allenmatkins.com
Kecia R. Felton
San Diego
kfelton@
allenmatkins.com
(619) 235-1546
(619) 235-1503
Who is Not Affected:
z"Big-Box/Power"
Center Managers and
Owners
zStand-Alone Retail
Managers and Owners
z"Big-Box" and Stand-
Alone Retail Tenants
Allen Matkins
#1 Real Estate
Law Firm in
California
Chambers and
Partners
2002 - 2007
California Supreme Court Expands State
Constitutional Protection of Free Speech
On December 24, 2007, by a
narrow 4-to-3 decision, the
California Supreme Court
handed down Fashion Valley
Mall, LLC v. National Labor
Relations Board, 42 Cal. 4th
850 (Cal. 2007), wherein the
Court held that the right to free
speech under the California
Constitution includes the right
of protestors to encourage
patrons inside a private shopping center to boycott specific
businesses located within the shopping center.
What Happened?
In Fashion Valley, Fashion Valley Mall ("Mall") implemented rule s
that, among other things, required individuals to obtain permits from
the Mall prior to engaging in protests or other expressive activity on
Mall property and expressly prohibited protestors from conduct
urging boycotts of Mall tenants "in any manner." The Mall argued
that the "no-boycott" rule was a reasonable time, place and manner
restriction that was necessary to prevent interference with the
normal business operations of the Mall, including the Mall's
legitimate interest in maximizing the profits of its merchants and,
therefore, was permitted by the California Constitution.
The California Supreme Court rejected the Mall's assertion and
affirmed the lower court's decision that while the Mall's permit
requirement passed constitutional muster, the "no-boycott" rule did
not because the "Mall's purpose to maximize the profits of its
merchants is not compelling compared to the [protestors'] right to
free expression." As a result, the majority in Fashion Valley slightly
extended the constitutional protection of free speech in California by
creating the right of individuals to urge primary or secondary
boycotts of stores in privately owned shopping malls.
How Can A Shopping Center Owner Protect Its
Property?
In the nearly thirty years and dozens of lawsuits since the landmark
decision by the United States Supreme Court in Robins v. Pruneyard
Shopping Center, 447 U.S. 74 (1980), involving free speech rights
on private shopping centers in California, shopping center owners
and managers have struggled to comply with the Court's mandate to
permit free speech in common areas, while at the same time
Information in this Alert
Directly Affects:
zShopping Center Owners
zShopping Center Managers
zShopping Center Tenants
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