Ninth Circuit: Unions Have Right Under California Constitution to Picket and Handbill in Shopping Centers

In a 2-1 decision applying California law, the U.S. Court of Appeals for the Ninth Circuit held in United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., No. 05-75295 (Aug. 25, 2008), held that six rules applied by shopping centers to restrict picketing and handbilling by union members violated the state constitution's free speech clause, and therefore impermissibly interfered with protected union activity.

This case is the latest chapter in that sub-genre of land use cases dealing with the speech rights at shopping centers that last reached the Supreme Court in memorably-captioned PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).  Generally speaking, you have no First Amendment rights on private property, but shopping centers have become -- for better or worse -- modern-day venues for speech, and the issue keeps being raised. 

In PruneYard, the California Supreme Court came down on the side of the public, and held under the California Constitution's free speech provision, that a shopping center owner could not exclude members of the public from setting up a card table and distributing pamphlets.  The case was appealed to the U.S. Supreme Court on takings grounds, with the Court rejecting the claim that the California Supreme Court's decision took the shopping center owner's right to exclude the public from its property.  Last December, the California Supreme Court confirmed in Fashion Valley Mall, LLC v. National Labor Relations Bd., No. S144753 (Dec. 24, 2007) (a decision we analyzed in this post), that California shopping centers are fora for public speech.  What this says about California's culture, we leave to you to decide.

Most states, however, do not agree with California's approach.  The Hawaii Supreme Court, for example, in State v. Viglielmo, 105 Haw. 197, 95 P.3d 952 (2004), held that the Hawaii Constitution's free speech clause provides no greater protection that the First Amendment, and that a shopping mall owner has the right to restrict expressive conduct on its premises. 

In United Brotherhood, the Ninth Circuit applied Fashion Valley Mall and the other California cases, and held that six rules (see pages 11581-82 of the slip opinion for the rules) violated the California Constitution, and enforcement of the rules by the shopping centers against union members were unfair labor practices.  The court's analysis of the free speech and property issues begins on page 11585 of the slip opinion.  One judge concurred in part and dissented in part (page 11603) on the grounds that California law would allow content-neutral regulation of speech at shopping centers.  With a well-reasoned and extensive dissent, might we see a petition for rehearing/en banc or a cert petition?

The Ninth Circuit's opinion is here.  The recording of the oral arguments is posted here.