388 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 18.5 Right to Leaflet in Private Shopping Malls In America generally, the property rights of shopping mall owners permit them to exclude leafleting, as the constitutional right of free speech applies only against governmental, not private, action. In California it’s different. In a 2007 case, the California Supreme Court, ruling in favor of labor organizers, held that the right to free speech under the California Constitution “includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.”21 Thus, a union may intrude upon the premises of a private shopping mall to urge a boycott of tenant stores, even though that activity interferes with the store’s business. In the underlying case, a union having a labor dispute with a newspaper prepared leaflets describing the newspaper’s mistreatment of workers and distributed the leaflets outside a department store, because the store advertised in the newspaper. Mall officials told the union members, who were breaking a mall rule against urging boycotts of mall stores, that they were trespassing. The union filed an unfair labor practice charge against the mall with the NLRB. When the NLRB held that the mall’s rules violated the NLRA, the mall appealed to the D.C. Circuit. Because “no California court has squarely decided whether a shopping center may lawfully ban from its premises speech urging the public to boycott a tenant,” that court asked the California Supreme Court to decide whether the mall’s rule was lawful.22 The California Supreme Court ruled for the labor organizers and against the shopping mall. The Supreme Court first found that “[l]isteners’ reaction to speech is not a content-neutral basis for regulation.” Accordingly, the mall’s content-based restriction on constitutionally protected speech required a “compelling interest” under the “strict scrutiny” test. Brushing aside the mall’s concern that encouraging a boycott interferes with the store’s business operation, the Supreme Court concluded that the mall’s anti-boycott rule was invalid: “[t]he Mall’s purpose to maximize profits of its merchants is not compelling compared to the Union’s right to free expression.”23 Therefore, the mall could not enforce its anti-boycotting rule against the union. A strong dissenting opinion urged the California Supreme Court to join the “judicial mainstream” by overruling California precedent that the property rights of shopping malls must yield to free-speech considerations. The dissent observed that California’s peculiar law in this respect “has received scant support and overwhelming rejection around the country”; indeed, 14 states with free speech-provisions in their constitutions almost identical to California’s had rejected the peculiar California rule. And four states that previously had adopted a similar approach to California’s (Colorado, Massachusetts, New Jersey, and Washington) were “generally retreating.”24 Thus, while courts generally respect property rights in the context of private sidewalks or private parking lots of stand-alone stores,25 California, in peculiar fashion, holds that shopping malls must remain open to the public for general speech purposes, subject only to reasonable time, place, and manner restrictions, meaning that unions in California have free rein to urge primary or secondary boycotts of stores inside privately owned shopping malls. 18.6 Access To Private Employee Information Although employees generally have a strong privacy interest in their home addresses and telephone numbers, the California Supreme Court has ruled that the County of Los Angeles must provide that information for its employees, including its non-union employees, to the union representing county employees. The Supreme Court acknowledged that this disclosure would amount to a serious invasion of privacy but felt that the invasion was justified on the basis that the union owed a duty of fair representation to all employees in the bargaining unit, and needed the requested information to communicate fully with the employees.26
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