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Fashion Valley Mall, LLC v. National Labor Relations Board

The D.C. Circuit denied a petition for review of a determination of the National Labor Relations Board that the petitioner violated the right to free speech guaranteed by the California Constitution and thereby committed an unfair labor practice. The petitioner, a shopping mall, required individuals and organizations that wished to engage in expressive activities such as picketing on its premises to promise not to urge consumers to boycott any of the mall's tenants as a prerequisite for a permit. In a prior decision, the court had certified to the U.S. Supreme Court the question of whether the petitioner's policy violated the National Labor Relations Act, and the Supreme Court found that it did. The petitioner then argued that the board's interpretation of the California Constitution violated its rights under the Fifth and 14th Amendments to the U.S. Constitution. The court held, however, that the petitioner's argument was forfeit because it was not timely raised in the court's prior proceeding.

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Argued December 13, 2005

Before: SENTELLE, Chief Judge, GINSBURG, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Fashion Valley owns a shopping mall in San Diego, California. It allows individuals and organizations to engage in expressive activities on its premises if they get a permit; in order to get a permit, an applicant must promise not to urge consumers to boycott any of the mall’s tenants. The NLRB concluded this policy violated the right to free speech guaranteed by the Constitution of California and therefore held it was an unfair labor practice; Fashion Valley petitioned this court for review. We agreed that “whether Fashion Valley violated the [National Labor Relations] Act depends upon whether it had the right, under California law, to maintain and enforce its anti-boycott rule.” 451 F.3d 241, 242 (2006). Accordingly, we certified that question to the Supreme Court of California, which held Fashion Valley’s policy violated the right to free speech guaranteed by the Constitution of California, 172 P.3d 742 (2007), and later denied Fashion Valley’s petition for rehearing.

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