Justices Limit Shopping Mall Speech Rights, But Unions Can Still Picket

Scott Graham

2012-12-27 05:22:37 PM

SAN FRANCISCO — The California Supreme Court on Thursday scaled back a 33-year-old precedent that provides constitutional protection for free speech at shopping centers. But at the same time the court bolstered California's statutory protection for labor unions that picket directly in front of store entrances.

As a practical matter, that means that unions will still be able to picket outside stores, though other speakers — like signature gatherers and religious groups — can be kept away.

Thursday's decision in Ralphs Grocery v. United Food and Commercial Workers Union Local 8 conflicts with a 2004 D.C. Circuit U.S. Court of Appeals ruling that said California's Moscone Act, which prevents courts from enjoining peaceful picketing, unconstitutionally elevated labor union speech above ordinary speech.

But Justice Joyce Kennard, writing for a 6-1 majority, said the D.C. Circuit's rationale wasn't persuasive, possibly setting the stage for a U.S. Supreme Court showdown.

"Neither the Moscone Act nor [Labor Code] §1138.1 restricts speech," Kennard wrote, "and the speech at issue here occurred on private property that is not a public forum for purposes of the federal Constitution's free speech guarantee."

Chief Justice Tani Cantil-Sakauye and Justice Goodwin Liu issued dueling concurrences over the breadth of the Moscone Act protections, while Justice Ming Chin dissented, saying the D.C. Circuit had it right.

"Today's opinion places California on a collision course with the federal courts," Chin wrote. "To discriminate in this way based on the content of the speech, or who the speaker is, raises serious constitutional questions."

The California Supreme Court held in 1979's Robins v. Pruneyard Shopping Center that the common areas in a large shopping center are a public forum, with speech subject only to reasonable time, place and manner restrictions. The ruling has been controversial, and the intermediate appellate courts have narrowed it over the past decade by excluding store entrances and "apron" areas from the holding. Three Supreme Court justices fell one vote short of overruling Pruneyard altogether five years ago.

The shopping center at issue in Thursday's decision is the College Square development in Sacramento. It opened July 25, 2007, and that very day a handful of union representatives began picketing the Foods Co. store operated by Ralphs. In January 2008 Ralphs tried to lay down ground rules on picketing, purporting to prohibit speech within 20 feet of the store entrance, the handing out of fliers, and banning all picketing for a week before certain holidays. The union generally did not follow Ralphs rules. Police declined to intervene without a court order.

The Third District Court of Appeal ruled that the sidewalk immediately in front of the Foods Co. entrance was not a public forum, and that the Moscone Act is unconstitutional.

On Thursday the California Supreme Court agreed that the areas in front of stores should be off limits to most public speech.

"Soliciting signatures on initiative petitions, distributing handbills, and similar expressive activities pose a significantly greater risk of interfering with normal business operations when those activities are conducted in close proximity to the entrances and exits of individual stores rather than in the less heavily trafficked and more congenial common areas," Kennard wrote. "Therefore, within a shopping center or mall, the areas outside individual stores' customer entrances and exits, at least as typically configured and furnished, are not public forums under this court's decision in Pruneyard."

As for the Moscone Act, the D.C. Circuit actually had asked the California Supreme Court to decide the issue in 2003, but the Supreme Court declined, and the D.C. Circuit went on to rule that union organizers had no right to distribute leaflets in a grocer's parking lot.

But Kennard wrote that the D.C. Circuit erred by looking to U.S. Supreme Court decisions that restricted speech, whereas the Moscone Act allows more speech. And those decisions involved public forums subject to constitutional protections, Kennard wrote, not private property. Finally, she wrote, the Moscone Act is animated by the state's interest in promoting collective bargaining to resolve labor disputes — not disagreement with somebody's speech.

Although six justices signed Kennard's opinion, three of them clearly wanted to set solid boundaries around the Moscone Act protections. Chief Justice Cantil-Sakauye, joined by Justices Marvin Baxter and Carol Corrigan, wrote separately to say that any interference with business operations — including threats of violence or even large picket signs — would not be protected by the law.

"Labor must abide by the owner's rules and policies to the extent required to prevent unlawful interference with the business, despite the fact that the limits imposed by the owner may reduce labor's ability to communicate its message," Cantil-Sakauye wrote. "Otherwise, the conduct will exceed the rights codified in the Moscone Act."

In his own concurrence, Justice Liu said he's "not sure what to make of this passage."

"A business can certainly adopt whatever restrictions it deems best for its own interests," he wrote. "But I do not see how 'rules and policies' adopted by a business owner carry any weight in resolving what activities are 'lawful' under the Moscone Act, beyond the weight of the evidence introduced by the business owner to demonstrate an unlawful interference with the business."

Liu, whose concurrence was joined by Justice Kathryn Mickle Werdegar, pointed out that restrictions on speech — like prohibiting harassing speech, for example — are common in the workplace.

Morrison & Foerster senior of counsel Miriam Vogel, a former appellate justice who argued the case for Ralphs Grocery, said the decision is "a great victory for retailers as far as putting another nail in the Pruneyard coffin." The "fiction" of the shopping center as a place to learn about issues of public interest went out with the Internet and the 20th century, she said.

But, she said, the court's rationale for upholding the Moscone Act — that it enhances rather than restricts speech — is mere semantics. "I don't think that ought to be the deciding factor," she said, adding that she's previously discussed with her client the idea of a petition to the U.S. Supreme Court and it's "a definite possibility."

Davis, Cowell & Bowe partner Richard McCracken, who represented the United Food and Commercial Workers Union, said he considered the ruling a win on both the Pruneyard line of cases and on the Moscone Act.

The limit on Pruneyard to common areas was already foretold by the intermediate appellate rulings, he said. In another sense, the Supreme Court actually extended the Pruneyard doctrine beyond a large shopping mall to a smaller cluster of stores based around a single large retailer, he said.

Meanwhile, McCracken said he was pleasantly surprised that the court expanded the reach of the Moscone Act to private spaces. "Labor activity has been divorced from Pruneyard," he said, which means the traditional time, place and manner restrictions would no longer apply.

That may be why Cantil-Sakauye is trying to draw a boundary between pure communication and physical conduct, McCracken said, adding, "I think that's a very hard line to draw."

"It's that kind of judicial innovation that led to these statutes in the first place," he said.