California Supreme Court grants new free-Speech power to unions and customers

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in Discrimination and Harassment,Employment Law,Human Resources

The California Supreme Court has ruled that unions and their supporters generally are free to urge customers shopping in private malls to boycott retailers at that mall.

The ruling builds on earlier decisions that held that free-speech rights granted to California citizens in the state constitution are broader than those in the U.S. Constitution. The ruling stated shopping malls essentially are public places that have replaced “Main Street” and the public square as gathering places.

Recent case: The Fashion Valley Mall, a privately owned San Diego shopping center, had a rule that prohibited “urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center.” In other words, the mall didn’t want union or citizen activists to use mall space to harm the commercial interests of the merchants who paid rent at the center.

When members of the Graphic Communications International Union showed up to urge shoppers to boycott some of the merchants, the mall told them to leave, citing the rule. The union, through the National Labor Relations Board, sued.

But the California Supreme Court said the mall went too far by trying to regulate the content of speech—in this case, by banning the talk of a boycott. The mall was free to set reasonable limits about the time, place and manner of the speech, but couldn’t ban it entirely. (Fashion Valley Mall, LLC v. National Labor Relations Board, No. S144753, Supreme Court of California, 2007)

Final note: Do you have a similar rule in place for customers or employees? It’s likely that quashing employee talk violates their labor organizing rights under the National Labor Relations Act and other discrimination laws. Your rule also might open you up to a separate lawsuit from “customers.” Check with your attorney to ensure your nonsolicitation rules are legal.

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