In the latest interpretation of California’s unique Pruneyard doctrine, the state Court of Appeal for the Second Appellate District has held that a shopping center’s rules favoring labor union activity over expressive activity by other groups are unconstitutional under the free speech provisions of the California Constitution.  Best Friends Animal Society v. Macerich Westside Pavillion Property LLC, 2011 Cal.App. Lexis 229 (2011). 

Under the Pruneyard doctrine, the owner of a shopping center is required to permit picketing and other forms of expressive activity in the common areas of the facility.  However, such activity can be controlled by the enforcement of reasonable “time, place and manner” regulations.  Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979).

In the Best Friends case, the shopping center owner allowed labor unions greater access to the facility than other groups under the belief that it was required by federal and state labor laws to favor union activity.  The appellate court held, however, that it was unconstitutional “content discrimination” to give preferential treatment to labor speech and thereby discriminate against other types of speech.

Although this is an unfavorable result for shopping centers, it provides support for other employers who are attempting to invalidate two California statutes that protect union trespassing on private property.  Two other districts of the California Court of Appeal have held these statutes to be unconstitutional because they result in content discrimination.  The Third District in Sacramento reached this conclusion under the federal constitution, and the Fifth District in Fresno did likewise under the state constitution.  Ralphs Grocery Co. v. UFCW Local 8, 186 Cal.App.4th 1078 (2010); Ralphs Grocery Co. v. UFCW Local 8, 2011 Cal.App. Lexis 94 (2011).  The Sacramento Ralphs case is now pending review at the California Supreme Court, and the union has requested review in the Fresno case.

The appellate court in Best Friends followed the decision of the Fresno court in finding the shopping center regulation unconstitutional because it favored union speech over expressive activity by other groups.  This is the same argument now being made in the California Supreme Court against the state statutes in the Sacramento Ralphs case.  Although the Best Friends decision arose under a shopping center regulation and the Ralphs case involves regulations adopted by the state, the same constitutional analysis applies in either instance.

Littler Mendelson is representing several trade associations as amici curiae in the Ralphs case now pending before the California Supreme Court.

This entry was written by William Emanuel.

photo credit: dra_schwartz