Fashon Valley Mall v. NLRB

One of the more interesting articles that I found this weekend is the ongoing legal struggle between property owners (more specifically large shopping mall owners) and the advocates for ‘free speech’. There is a current case in front of the California Supreme Court that attempts to limit the private property rights of owners that their ability to control business practices on their properties. The tenants (and we’re talking about tenants like Target, Macy’s, etc.) have a right to conduct business on the properties that they lease from large shopping center owners. When someone attempts to pass out a flyer on private property or protest an "unfair" trade practice, the landlords argue that they (and their tenants) have a right to conduct business on private property.

This latest case, Fashion Valley Mall v. NLRB, stems from a 1998 incident in which a Teamsters Union affiliate involved in a dispute with the San Diego Union-Tribune newspaper was distributing leaflets outside a Robinsons-May store, urging shoppers to telephone the paper's owner. But the store was a Union-Tribune advertiser. The mall ejected the union representatives, saying that they had failed to complete a permit application agreeing to abide by mall rules — one of which forbids advocating boycotts. The case is now before California's Supreme Court, which last week heard amicus curiae testimony on behalf of ICSC and the California Business Properties Association delivered by Thomas Leanse, of the Chicago-based Katten Muchin Rosenman law firm. Leanse argued that shopping centers are private property and shopping center owners should be allowed to protect their business interests.

“This isn't Speaker's Corner in Hyde Park, it's not Pershing Square in Los Angeles,” said Leanse. “These are privately owned shopping centers and the protestors directly interfere with business.” The court is scheduled to deliver its verdict within 90 days. What makes the case important, Leanse says, is a 1979 ruling in California, Robins v. PruneYard Shopping Center, in which the court extended the right of free expression to large shopping centers, likening them to town squares. Leanse says there is a chance that this ruling will be overturned, though it is a small one. “It is unlikely the 1979 precedent will be overturned,” he said. “But we argue that the shopping center has rules, and they are rules we can enforce, like the no-boycott rule.”