May 30, 2008
Court Puts Free Speech Before Property Rights
Count one for free speech and one against property rights in California.
By a 4-3 margin, that state’s Supreme Court ruled that labor union protestors had the right to go onto the sidewalk of a San Diego mall in 1998 and distribute leaflets to consumers calling on them to boycott the facility’s anchor tenant.
Justice Carlos Moreno wrote for the majority, “A shopping mall is a public forum in which persons may reasonably exercise free speech.”
In the case, Fashion Valley Mall LLC vs. NLRB, the mall’s managers stopped workers from the San Diego Union-Tribune from distributing leaflets promoting a boycott of the Robinsons-May department store. At the time, the department store was an advertiser in the Union-Tribune and workers were seeking to bring pressure against the paper in a labor dispute. The protestors had failed to acquire a permit for their demonstration before it began.
The mall, according to a Shopping Centers Today report, had a policy of allowing protests under certain circumstances but were unlikely to approve a call for a boycott against an anchor.
The union representing the Union-Tribune workers filed a grievance with the National Labor Relations Board (NLRB) against the prohibition and prevailed. The NLRB ruled that preventing the protest violated provisions of the National Labor Relations Act.
The mall appealed the NLRB ruling to a federal appeals court that sent the case to the highest court in California to make a determination.
The International Council of Shopping Centers (ICSC) joined with the California Business Properties Association (CBPA) in supporting the mall’s right to bar protestors.
Thomas Leanse, a lawyer at Katten Muchin Rosenman, offered testimony on behalf of the ICSC and the CBPA. He told the court, “This isn’t Speaker’s Corner in Hyde Park; it’s not Pershing Square in Los Angeles. These are privately owned shopping centers, and the protestors directly interfere with business.”
Associate Justice Ming Chin wrote the dissenting opinion. He argued, “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.”
Discussion Question: Which should be given more weight – free speech or property rights – when it comes to business protests?
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I agree with Chin’s dissenting opinion. The foundation of this case also brings to mind the rulings that threw the nutcases out of airports some years ago. Time was, if you recall, you couldn’t get to security without first going thru the religious zealot gauntlet.
Property rights should be superior to freedom of speech based on the history. Property rights started with the Magna Carta which proceeds freedom of speech. Freedom of speech was enacted to keep the government from controlling communication. One can say anything they want–on their own property and on public property.
The California ruling is from an extremely liberal court that likes to write the laws, not interpret them. These courts have the greatest percentage of overturn judgments.
This is a phony issue. There was no gain for “free speech” but a continuing destruction of property rights. It is not that these judges are stupid, they simply do not believe in the constitution. Lot’s of other people don’t, either, and simply support a political system that will reshape American society in THEIR image. It’s an execrable image that the founders did everything they could to forestall.
When you invite the public onto your property, you cannot reasonably ask the public to surrender their rights. Shopping malls aren’t jails or high schools. Why don’t the shopping mall developers and newspaper owners picket the labor unions?
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I agree with Chin’s dissenting opinion. The foundation of this case also brings to mind the rulings that threw the nutcases out of airports some years ago. Time was, if you recall, you couldn’t get to security without first going thru the religious zealot gauntlet.
Property rights should be superior to freedom of speech based on the history. Property rights started with the Magna Carta which proceeds freedom of speech. Freedom of speech was enacted to keep the government from controlling communication. One can say anything they want–on their own property and on public property.
The California ruling is from an extremely liberal court that likes to write the laws, not interpret them. These courts have the greatest percentage of overturn judgments.
This is a phony issue. There was no gain for “free speech” but a continuing destruction of property rights. It is not that these judges are stupid, they simply do not believe in the constitution. Lot’s of other people don’t, either, and simply support a political system that will reshape American society in THEIR image. It’s an execrable image that the founders did everything they could to forestall.
When you invite the public onto your property, you cannot reasonably ask the public to surrender their rights. Shopping malls aren’t jails or high schools. Why don’t the shopping mall developers and newspaper owners picket the labor unions?