Confirming once again that the shopping mall defines California’s culture, the California Supreme Court in Fashion Valley Mall, LLC v. National Labor Relations Bd., No. S144753 (Dec. 24, 2007), held that the mall is a public forum for the airing of grievances, and that the mall’s owner did not have the right to prohibit protesters from urging on-site a boycott of a mall tenant.
The First Amendment does not prohibit private censorship, but the court held that the California Constitution’s free speech clause provides greater protection than the First Amendment. Thus, under California law, private shopping malls may not bar on-site protests, even when those protests are directed at a mall tenant. The court reaffirmed the holding of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979) which held that shopping malls are fora for public speech. In other words, unlike the owners of other types of private property,the owners of California shopping malls do not possess the ability tochoose whom to exclude. That decision was affirmed by the U.S. Supreme Court after the propertyowner challenged the California Supreme Court’s decision as a “judicialtaking” of his right to determine who to exclude from his land. PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).
Free speech protections are supposed to prohibit government censorship, but apparently in California, going to the mall is like going to City Hall. I wonder if this ruling will have applications to other types of property in the future as they are considered by the California courts to have become a “public space.” Can I delete comments critical of this blog, for example, if I don’t like what they say?
The Wall Street Journal’s Law Blog deals with the case in “CA Supremes Give Free Speech Rights on Private Property,” while the first two words in the lede in the San Francisco Chronicle’s write up may provide the real motivating factor for the court’s decision:
Labor unions and political protesters are protected by freedom of speech when they leaflet shoppers at malls in California and urge them to boycott stores, a sharply divided state Supreme Court ruled Monday.
California lawyer J. Craig Williams also predicts a cert petition and reversal by the U.S. Supreme Court.
The Hawaii Supreme Court in State v. Viglielmo, 105 Haw. 197, 95 P.3d 952 (2004) reached the opposite conclusion, holding 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. It’s private property, after all. Hold your protests at Ala Moana Beach Park, not Ala Moana Shopping Center. The court’s opinion also provides details of the treatment of the issue by other jurisdictions.
Another question. The City and County of Honolulu maintains Satellite City Halls at several shopping malls and on other private locations. These are little slices of city government where I can renew my DMV paperwork, pay my municipal water and property tax bills, and register to vote, for example. Very convenient, and they are even open on Saturdays. Since I can protest outside of City Hall, can I hold a “satellite” protest outside of one of these locations, or will I be barred by Viglielmo?