Shopping Mall is Prohibited from Differentiating Between Labor and Non-Labor Protests

In the case of Best Friends Animal Society v. Macerich Westside Pavilion Property, LLC decided March 2, 2011, the California Court of Appeal addressed the question of whether a privately owned shopping mall can enforce rules that give preferential treatment to persons engaged in labor speech on their premises. The court held that it could not, and that such rules violate the state Constitution by discriminating against other types of speech.

The dispute arose when an animal rights group named “Puppies Aren’t Products” sought permission to protest every Saturday and Sunday in front of a Barkworks store on the third floor of the Westside Pavilion in Los Angeles. The mall granted permission to the group to congregate in two areas, one on the ground floor and one on a pedestrian bridge on the third level that was not within sight or earshot of the store. The mall also prohibited the group from protesting on designated “blackout days” on which shopping traffic was the heaviest.

A suit was filed to enjoin the implementation of the rules based on Article I, section 2 of the Constitution, which provides that “Every person may freely speak, write, and publish his or her sentiments on all subjects” and prohibits the abridgment of liberty of speech. A lower court denied an injunction on the ground that the mall had imposed reasonable “time, place and manner” restrictions for protesting in a public forum, even though the mall afforded persons engaged in labor speech the right to protest on blackout days and in less confined areas. The appellate court held that the mall’s interest in maximizing profits for its tenants was not sufficiently compelling to justify discrimination against speech based on its content in these circumstances.

Along with the recent Ralphs Grocery Co.  v. U.F.C.W. Local 8 case reported here on February 1, 2011, this case is part of a trend in which the courts have begun questioning the favoritism that has historically been afforded to speech engaged in by labor unions in public places. The effect of the ruling could be to not only expand the rights of non-labor groups to protest in public forums, but to also justify greater restrictions on labor protests so long as they are reasonable and imposed on all other persons regardless of the message sought to be conveyed.

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