[Peace-discuss] Freedom of speech in CA (not in IL)

[C. G. Estabrook]

[Local liberals are aghast at our suggestion that places like Lincoln 
Square are "the modern equivalent of a town square or community meeting 
place," but the California Supreme Court has grasped this obvious point. 
   (And  I do love the objection that protesters were attacking the 
shopping center's "right to exist"; I wonder if that argument will be 
used elsewhere?) Happy new year.  --CGE]

	California's top court curbs malls seeking to limit boycotts
	Bob Egelko, Chronicle Staff Writer
	Tuesday, December 25, 2007

SAN FRANCISCO -- 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.

The 4-3 decision was based on the court's landmark 1979 ruling that 
allowed political speech and activity at large shopping centers. In that 
ruling, which involved signature-gathering on political petitions at the 
PruneYard Shopping Center in Campbell, the court said a shopping mall 
was the modern equivalent of a town square or community meeting place, 
where people come to exchange ideas as well as spend money.

The U.S. Supreme Court had ruled in 1976 that the First Amendment to the 
U.S. Constitution protects free speech only against restrictions imposed 
by the government and not by private property owners. But the 1979 
ruling, based on independent rights under the California Constitution, 
remains the law in the state.

In Monday's case, lawyers for a San Diego shopping center argued that it 
had the right to protect its tenants' economic interests by prohibiting 
handbills that advocate boycotts of any of its stores. Attorneys for 
Fashion Valley Mall, a complex of more than 200 upscale retailers, said 
the freedom of speech recognized by the court in 1979 didn't cover 
statements that attack a shopping center's purpose for existing.

But a majority of the court said its rulings even before 1979 required 
shopping centers to allow peaceful picketing on the premises, even 
though it might interfere with profits. As long as the protesters don't 
disrupt a business or physically interfere with shoppers, the court 
said, the right of free speech outweighs the mall's right to protect its 
tenants' profits.

"Urging customers to boycott a store lies at the core of the right to 
free speech," said Justice Carlos Moreno in the majority opinion. He 
said the mall's rules were not aimed at preventing disruption but simply 
prohibited certain speech based on its content.

The dissenters, led by Justice Ming Chin, said the court should not only 
uphold the shopping center's ban on consumer boycotts but also overturn 
its 1979 ruling allowing peaceful political activity at shopping malls.

"Private property should be treated as private property, not as a public 
free speech zone," said Chin, joined by Justices Marvin Baxter and Carol 
Corrigan. He noted that courts in nearly all other states that have 
considered the same issue have disagreed with the California ruling.

At the very least, Chin said, the court should allow owners of a mall to 
forbid advocacy of a store boycott, which "contradicts the very purpose 
of a shopping center's existence."

The case arose when members of a Teamsters Union affiliate that was 
involved in a labor dispute with the San Diego Union-Tribune handed out 
leaflets in October 1998 outside the Robinsons-May department store at 
the Fashion Valley Mall. The leaflets asked shoppers to call the 
newspaper's chief executive, noting that the store advertised in the 
Union-Tribune.

The leafleters were expelled by the shopping center manager because they 
hadn't filled out a permit application promising to abide by the mall's 
rules, including a ban on advocating boycotts. Lawyers in the case said 
most regional shopping centers in California have similar rules, which 
will have to be changed because of Monday's ruling.

The ruling doesn't directly affect other restrictions on protests at 
shopping centers, including rules enforced at many malls that limit or 
ban picketing and leafleting during the holiday season, and restrict the 
location of protesters at other times. But David Rosenfeld, a lawyer for 
the union in Monday's case, said he would argue that courts should take 
a closer look at such restrictions in light of the decision.

W.W. Lines, a lawyer for the San Diego shopping center, said limits on 
the time and place of political activity at malls have been upheld by 
other courts and shouldn't be affected by Monday's ruling. "I think 
businesses can live with this," he said.

The case is Fashion Valley Mall vs. National Labor Relations Board, 
S144753. The ruling is available at links.sfgate.com/ZBXC.

E-mail Bob Egelko at begelko at sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/12/25/BA59U45LU.DTL

This article appeared on page B - 1 of the San Francisco Chronicle