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Shopping mall must allow protest against tenant

A shopping mall cannot prevent a union from leafleting in front of a tenant’s store to urge a boycott of the store, according to the California Supreme Court. The union in this case represented employees of a San Diego newspaper. Union members wanted to protest outside a department store in the mall, urging shoppers not to patronize the store because it bought ads in the newspaper.

The mall objected. While the mall allowed protests and other political activities inside, it required protesters to obtain a permit, and it had a policy of denying permits to anyone who wanted to protest against one of its tenants. By a 4-3 vote, the court sided with the union.

It said that even though the shopping mall is privately owned, it amounts to a public space where people have a right to free speech – even if that speech is directed against one of the mall’s own tenants. The case was decided under the “free speech” clause of the California constitution, which is broader than the U.S. Constitution. And courts in other states have reached a different decision. Nevertheless, the case demonstrates that when a commercial landlord opens an area to the public, it might have to allow “speech” it doesn’t want. A careful policy in this regard might not be foolproof but it can help to defuse conflicts.

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