Can the mall prohibit people from passing out leaflets intended to persuade people not to shop at a store in the mall? Under the United States Constitution, the answer is “yes.” But in California, the answer is “no.” The California Supreme Court has construed its Constitution to be more liberal than the Federal Constitution, and based on a 1979 case which held that high school students had the right to solicit signatures in a mall opposing a United Nations resolution against Zionism, the court extended that right to people picketing a store in a mall.
A very strong dissent by three judges opposed the new extension of the rule, saying that “Private property should be treated as private property, not as a public free speech zone. * * * A shopping center exists for the individual businesses on the premises to do business. Urging a boycott of those businesses contradicts the very purpose of the shopping center’s existence. It is wrong to compel a private property owner to allow an activity that contravenes the property’s purpose.” The dissenting judges explained that the California position has been rejected by every other state and the Federal courts.
Nevertheless, it is now the rule in California that private property owners of a shopping mall cannot prohibit people from picketing their stores inside the mall. Fashion Valley Mall v. National Labor Relations Board, decided December 24, 2007.
