©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 387 statutes in question tied the hands of a judge who otherwise could enjoin the trespassing. The Court of Appeal in this second case also held the statutes unconstitutional, reasoning that there “is no compelling reason for the state to single [pro-union speech] out as the only form of speech that can be exercised despite the objection of the owner of private property upon which the speech activity occurs.”14 But then the California Supreme Court, in 2012, re-tilted the playing field in favor of unions by invalidating these appellate decisions and issuing its own decision.15 The Supreme Court upheld the constitutionality of the Moscone Act and section 1138.1 as being “justified by the state’s interest in promoting collective bargaining to resolve labor disputes, the recognition that union picketing is a component of the collective bargaining process, and the understanding that the area outside the entrance of the targeted business is ‘the most effective point of persuasion.’” For support, the Supreme Court cited other laws protecting labor-related speech in the context of economic regulations, and U.S. Supreme Court decisions that “support the proposition that labor-related speech may be treated differently than speech on other topics.” A concurring opinion cited the portion of the Moscone Act that proscribes unlawful conduct—such as breach of the peace, disorderly conduct, and blocking of ingress and egress—to stress that the Moscone Act and section 1138.1 do not protect union conduct that involves violence or aims to harm businesses by using tactics that go beyond “persuasion of patrons to labor’s position.” The concurring opinion stated that using more signs or individuals in a small area than reasonably required to publicize a dispute would be unlawful. But since these legal observations are not part of the majority opinion, it is unclear how much weight lower courts will give them. In another development related to the privileged nature that California has conferred upon pro-union activities, the Court of Appeal, applying California’s constitutional protection of free speech to a private shopping mall, has held it was unconstitutional for the mall, having permitted union picketing of mall premises, to prohibit picketing by an animal rights’ organization that was protesting the practices of a pet shop located within the mall.16 18.3 Regulating Advertising for Strike-Breakers Any advertisement seeking persons to work during a California trade dispute must contain certain disclosures, such as the fact of a dispute and the name of the advertiser and the employer who is represented.17 18.4 Gag Orders for State Government Contractors A union-inspired statute provided that employers contracting with or providing services to the state must not use state money to assist, promote, or deter union organization. State contractors were also forbidden to hold meetings on state property to assist, promote, or deter union organizing. Employers subject to this law had to certify in writing and maintain accounting records to prove that there had been no misuse of funds. Among the penalties for violation were a fine of repayment of the state funds plus a penalty equal to twice the amount of repayment. Taxpayers could sue to enforce this law, and prevailing plaintiffs could recover attorney fees.18 When California employers challenged this restriction on employer speech as preempted by the National Labor Relations Act, the Ninth Circuit, in a 2006 en banc decision, ruled 12-3 that the legislation was valid.19 The U.S. Supreme Court then held otherwise, ruling, 7-2, that federal labor law preempts the California legislation, because that legislation impermissibly regulated within “a zone protected and reserved for market freedom.”20
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