Supreme Court Upholds Free Speech at the Mall

The California Supreme Court ruled today that Fashion Valley Mall cannot prevent protesters on its property from urging a boycott of one of its tenants. The three ACLU affiliates in California filed an amicus brief asking the court to make clear that the strict standard for regulating speech in a public forum also applies to shopping centers under California law.

At issue was a 1998 incident during which picketers from the San Diego Union-Tribune began distributing leaflets inside the mall, describing their grievances against the newspaper and singling out the Robinsons-May store as a Union-Tribune advertiser. Mall officials arrived within minutes and removed the picketers to a public space outside the mall entrance.

California law requires private shopping centers to respect free speech rights in their common areas, on the ground that shopping centers are the modern equivalent of the town square. In connection with a labor dispute that resulted in an NLRB charge, the D.C. Circuit certified an important free speech question to the California Supreme Court: whether a shopping center may prohibit speech that urges or encourages “customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center.”