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Quote of the Day - I realize that there are certain limitations placed upon the right of free speech. I may not be able to say all I think, but I am not going to say anything I do not think. - Eugene Debs

Say What You Want, You Can Protest In A Mall Only In California

The last place you'd expect to be a hotbed of First Amendment free speech activity is a mall.  You know, a shopping mall, once the bane of Main Street USA, but now the darling of many city redevelopment projects designed to bring you and your dollars back downtown.

But that's another story.  Let's get to the point here.

This one features the workers in the pressroom of the San Diego Tribune and one of the paper's major advertisers.  The workers and the newspaper got involved in a labor dispute, and the Graphic Communications International Union Local 432-M workers went to the mall- the Fashion Valley Mall in San Diego.

Not to shop, but to encourage others not to shop at Robinson's May stores, one of the paper's major advertisers.  You know:  the old hit 'em in the pocketbook approach.  Boycott one of my bosses' advertisers so they'll pressure the paper to cave into my demands for a raise.

Convoluted, but then again, they're newspaper people.  Journalists rarely make sense.

Nonplussed, the mall called out its security force and chased away the newspaper people with threats of litigation and arrest.  The Local union had apparently not applied for a permit to protest at the mall, which they were supposed to have done five days earlier according to the Mall's rules.

Malls have rules?

In any event, the Mall rule prevented anyone from encouraging a boycott of one of the mall stores.  Not surprising, but according to the California Supreme Court's ruling, illegal.

Malls can enact what are known as "reasonable time, place and manner restrictions," but they cannot prevent someone from expressing certain content or viewpoints.  If you follow the Constitutional arguments at all, at this point, you're likely asking, "where's the state action?"

"State action?" you say.  Yes.  In this case, there is none, and to top it off, this mall is private property.  In virtually every other state in the country, there are no free speech rights on private property. 

You will likely not be surprised to know that California is different.  But in this difference, as Justice Chin notes in his eloquent dissent, we stand alone.  Practically every other state in the country has ruled that private property owners can exclude protesters from their private property.

Imagine, if you will, someone protesting on your small patch of grass otherwise known as your front lawn.  You get the picture.  Figuratively speaking, you can't stop someone from standing there and protesting.  Well, as a matter of fact, you could, but I'm trying to make a point here.  You could actually stop someone as a trespasser, but malls are different.  They look more like a public forum than your front lawn because they invite people to come there and shop.  You, on the other hand, likely don't, thus you can exclude others. 

That's the sole difference that drives California's difference from the rest of the country.  It looks more like a public forum, so we're going to treat it as one. 

Look for this case to be overturned by the United States Supreme Court once Fashion Valley Mall files its appeal (aka petition for writ of certorari for you lawyer types).  You heard it here first. 

Posted by J. Craig Williams on 12/26/2007 at 22:17 Comments (4)



Comments by Robert Thomas from United States on Thursday, December 27, 2007 at 19:30

Great post and comments.
The SCOTUS PruneYard case was an appeal on the issue of whether the California Supreme Court's interpretation of the California Constitution deprived owners of shopping malls of the ability to control whom to exclude from the property. SCOTUS held it was not a taking, since the owner of a shopping center never owned a complete right to exclude others, since part and parcel of being a shopping center is inviting the public to enter your property.
I wonder whether the First Amendment issue would gain any traction in a cert petition, although the Court has said that the states are free to provide greater protection than the US Const, provided that protection does not infringe upon some other federally-protected rights.


Comments by John Jenkins from United States on Thursday, December 27, 2007 at 18:43

I think I disagree, since the California Supreme Court based its decision explicitly on the state constitution's protection for free speech, which that court has interpreted more broadly than the First Amendment to the U.S. Constitution.
That leaves the mall with the same claim that Pruneyard had: California's interpretation of the California Constitution is prohibited by the U.S. Constitiution.
I think it is clear that Pruneyard controls, because the Pruneyard Court decided that the U.S. Constitution did not give the shopping center the right to exclude speakers.
How can the California Supreme court have rejected Pruneyard, when the case came to the Supremes from that court, and the Supremes affirmed the California Court's decision? That does not make sense. (No one ELSE has adopted Pruneyard, because it's stupid, but that doesn't mean California hasn't).


Comments by J. Craig Williams from United States on Thursday, December 27, 2007 at 18:05

Yes, indeed, as Justice Chin points out in his dissent. California's Consititution, however, is interpreted first by the California Supreme Court, who so far have rejected Pruneyard. Ultimately, SCOTUS has the final word, which is why I predicted Fashion Valley Mall will be overturned.
Good catch.


Comments by John Jenkins from United States on Thursday, December 27, 2007 at 13:58

Didn't the Supreme Court already decide this issue in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)?


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