69 Cal.Rptr.3d 288 (2007) 42 Cal.4th 850 172 P.3d 742

FASHION VALLEY MALL, LLC, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent;
Graphic Communications International Union, Local 432-M, Real Party in Interest.

No. S144753.

Supreme Court of California.

December 24, 2007.

*289 Law Offices of W. McLin Lines, W.M. Lines, Torrance; Luce, Forward, Hamitlon & Scripps, Littler Mendelson and Theodore R. Scott, San Diego, for Petitioner.

Katten Muchin Rosenman, Thomas J. Leanse, Stacey McKee Knight, Los Angeles; Law Offices of Jo Anne M. Bernhard and Jo Anne M. Bernhard, for International Council of Shopping Centers and California Business Properties Association as Amici Curiae on behalf of Petitioner.

Alan Schlosser, San Francisco; Peter Eliasberg, Los Angeles; and David Blair-Loy, for American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California and American Civil Liberties Union of San Diego and Imperial Counties as Amici Curiae on behalf of Petitioner.

David A. Habenstreit, Anne Marie Lofaso, Arthur F. Rosenfeld, John E. Higgins, Jr., Margery E. Lieber and Aileen A. Armstrong, for Respondent.

Weinberg, Roger & Rosenfeld, David A. Rosenfeld, Alameda, Caren P. Sencer, Richard D. Prochazka & Associates and Richard D. Prochazka, San Diego, for Real Party in Interest.

Law Offices of Carroll & Scully, Donald C. Carroll and Charles P. Scully II, San Francisco, for California Labor Federation, *290 AFL-CIO, as Amicus Curiae on behalf of Real Party in Interest.

MORENO, J.

We granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. For the reasons that follow, we hold that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.

FACTS

On October 15, 1998, Graphic Communications International Union Local 432-M (Union) filed a charge before the National Labor Relations Board (NLRB) alleging that the owners of the Fashion Valley Mall (Mall) in San Diego had "refused to permit employees of the Union-Tribune Publishing Company to leaflet in front of Robinsons-May" department store in the Mall. The NLRB issued a complaint and noticed a hearing, after which an administrative law judge ruled that the Mall had violated section 8(a)(1) of the National Labor Relations Act (29 U.S.C. § 158(a)(1)) by barring the employees from distributing leaflets.^[1]

The administrative law judge found that the Union "represents a unit of the pressroom employees at the San Diego Union-Tribune (Union-Tribune), a major general circulation newspaper in San Diego." The collective bargaining agreement between the employees and the newspaper had expired in 1992 and the parties had been unable to reach a new agreement. The administrative law judge thus found that a "primary labor dispute" existed between the newspaper and its employees at the time of the disputed labor activities in 1998.

On October 4, 1998, 30 to 40 Union members had distributed leaflets to customers entering and leaving the Robinsons-May store at the Mall.^[2] The leaflets stated that Robinsons-May advertises in the Union-Tribune, described several ways that the newspaper allegedly treated its employees unfairly, and urged customers who believed "that employers should treat employees fairly" to call the newspaper's "CEO," listing his name and telephone number. The administrative law judge concluded: "From all indications, the leafleters conducted their activity in a courteous and peaceful manner without a disruption of any kind and without hindrance to customers entering or leaving" the store.

Within 15 or 20 minutes, Mall officials "arrived on the scene to stop the leafleting," notifying the Union members that they were trespassing because they had not obtained a permit from the Mall "to engage in expressive activity," and warning them that they "would be subject to civil litigation and/or arrest if they did not leave." A police officer appeared and, following a brief argument, the Union members moved to public property near the *291 entrance to the Mall and continued distributing leaflets briefly before leaving the area.

The Mall has adopted rules requiring persons who desire to engage in expressive activity at the Mall to apply for a permit five business days in advance. The applicant "must agree to abide by" the Mall's rules, including rule 5.6, which prohibits "impeding, competing or interfering with the business of one or more of the stores or merchants in the shopping center by. [¶] ... [¶] 5.6.2 Urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center."

The administrative law judge found that the Union "was attempting to engage in a lawful consumer boycott of Robinsons-May because Robinsons-May advertised in the Union-Tribune newspaper" and further found "that it would have been utterly futile for the Union to have followed [the Mall]'s enormously burdensome application-permit process because its rules contained express provisions barring the very kind of lawful conduct the Union sought to undertake at the Mall." The administrative law judge thus ordered the Mall to cease and desist prohibiting access to the Union's "leafleters for the purpose of engaging in peaceful consumer boycott handbilling."

On September 26, 2001, the matter was transferred to the NLRB in Washington, D.C. On October 29, 2004, the NLRB issued an opinion affirming as modified the administrative law judge's decision. Citing our decision in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, affirmed sub nomine PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741, the NLRB stated: "California law permits the exercise of speech and petitioning in private shopping centers, subject to reasonable time, place, and manner rules adopted by the property owner. [Citations.] Rule 5.6.2, however, is essentially a content-based restriction and not a time, place, and manner restriction permitted under California law. That is, the rule prohibits speech `urging or encouraging in any manner' customers to boycott one of the shopping center stores.... [I]t appears that the purpose and effect of this rule was to shield [the Mall]'s tenants, such as the Robinsons-May department store, from otherwise lawful consumer boycott handbilling. Accordingly, we find that [the Mall] violated Section 8(a)(1) by maintaining Rule 5.6.2. [Citation.]" (Fn. omitted.)

The Mall petitioned for review before the United States Court of Appeals for the District of Columbia Circuit, which issued an opinion on June 16, 2006. The court of appeals stated it had to resolve two issues: "(1) State law aside, did [the Mall]'s requirement of a permit for expressive activity, conditioned as it was upon the Union's agreement not to urge a boycott of any Mall tenant, violate § 8(a)(1) of the Act? (2) If so, was [the Mall] acting within its rights under California law?" The court answered the first question in the affirmative, which meant that the case turned on the resolution of the second question. The court addressed this question of California law as follows: "Although [the Mall] is correct that there is not substantial evidence the Union intended to boycott any of the Mall's tenants, nothing in the Act prohibits the Union from carrying out a secondary boycott[^[3]] by means of peaceful handbilling. [Citation.] In subjecting the *292 Union to a permit process that required it to forswear use of this lawful tactic, therefore, [the Mall] interfered with the employees' rights under § 7 of the Act.... Enforcement of Rule 5.6.2 therefore violated § 8(a)(1)—unless, that is, the Company had the right under California constitutional law to exclude the employees altogether." The court of appeals observed that "no California court has squarely decided whether a shopping center may lawfully ban from its premises speech urging the public to boycott a tenant," and concluded that "whether [the Mall] violated § 8(a)(1) of the Act depends upon whether it could lawfully maintain and enforce an anti-boycott rule—a question no California court has resolved." Accordingly, the United States Court of Appeals for the District of Columbia Circuit filed in this court a request,^[4] which we granted, to decide the following question: "Under California law may Fashion Valley maintain and enforce against the Union its Rule 5.6.2?"

DISCUSSION

Article I, section 2, subdivision (a) of the California Constitution declares: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Nearly 30 years ago, in Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341 (Pruneyard), we held that this provision of our state Constitution grants broader rights to free expression than does the First Amendment to the United States Constitution by holding that a shopping mall is a public forum in which persons may exercise their right to free speech under the California Constitution. We stated that a shopping center "to which the public is invited can provide an essential and invaluable forum for exercising [free speech] rights." (Ibid.) We noted that in many cities the public areas of the shopping mall are replacing the streets and sidewalks of the central business district which, "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." (Hague v. C.I.O (1939) 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423.) Because of the "growing importance of the shopping center[,] ... to prohibit expressive activity in the centers would impinge on constitutional rights beyond speech rights," particularly the right to petition for redress of grievances. (Pruneyard, supra, 23 Cal.3d at p. 907, 153 Cal.Rptr. 854, 592 P.2d 341.) Accordingly, we held that the California Constitution "protect[s] speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." (Id. at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.) We added the caveat in Pruneyard that "[b]y no means do we imply that those who wish to disseminate ideas have free rein," noting our previous "endorsement of time, place, and manner rules." (Ibid.)

The Mall in the present case generally allows expressive activity, as mandated by the California Constitution, but requires persons wishing to engage in free speech in the Mall to obtain a permit. *293 Under rule 5.6.2, the Mall will not issue a permit to engage in expressive activity unless the applicant promises to refrain from conduct "Urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center." We must determine, therefore, whether a shopping center violates California law by banning from its premises speech urging the public to boycott one or more of the shopping center's businesses.

The idea that private property can constitute a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks long predates our decision in Pruneyard. The United States Supreme Court recognized more than half a century ago that the right to free speech guaranteed by the First Amendment to the United States Constitution can apply even on privately owned land. In Marsh v. Alabama (1946) 326 U.S. 501, 502, 66 S.Ct. 276, 90 L.Ed. 265, the high court held that a Jehovah's Witness had the right to distribute religious literature on the sidewalk near the post office of a town owned by the Gulf Shipbuilding Corporation, because the town had "all the characteristics of any other American town.... In short, the town and its shopping district are accessible to and freely used by the public in general, and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." (Id. at pp. 502-503, 66 S.Ct. 276.) The high court stated: "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." (Id. at p. 506, 66 S.Ct. 276.)

This court followed the high court's decision in Marsh to hold that a shopping center could not prohibit a union's peaceful picketing of one of the shopping center's stores. (Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union (1964) 61 Cal.2d 766, 40 Cal.Rptr. 233, 394 P.2d 921 (Schwartz-Torrance).) We recognized that peaceful picketing by a labor union "involves an exercise of the constitutionally protected right of freedom of speech." (Id. at p. 769, 40 Cal.Rptr. 233, 394 P.2d 921.) We rejected the shopping center's argument that its right to "the exclusive possession and enjoyment of private property" outweighed the union's right to picket: "Because of the public character of the shopping center, however, the impairment of plaintiffs interest must be largely theoretical. Plaintiff has fully opened his property to the public." (Id. at p. 771, 40 Cal.Rptr. 233, 394 P.2d 921.)

In In re Hoffman (1967) 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353, we reiterated that private property that was open to the public in the same manner as public streets or parks could constitute a public forum for free expression, holding that protesters had the right to express their opposition to the war in Vietnam by distributing leaflets in Union Station in Los Angeles, "a spacious area open to the community as a center for rail transportation" that was owned by three railroad companies. (Id. at p. 847, 64 Cal.Rptr. 97, 434 P.2d 353.) This court reasoned that, with regard to distributing leaflets, "a railway station is like a public street or park. Noise and commotion are characteristic of the normal operation of a railway station. The railroads seek neither privacy within nor exclusive possession of their station. They therefore cannot invoke the law of trespass against petitioners to protect those interests. [¶] Nor was there any other interest that would justify prohibiting petitioners' activities. Those activities *294 in no way interfered with the use of the station. They did not impede the movement of passengers or trains, distract or interfere with the railroad employees' conduct of their business, block access to ticket windows, transportation facilities or other business legitimately on the premises. Petitioners were not noisy, they created no disturbance, and did not harass patrons who did not wish to hear what they had to say. [¶] Had petitioners in any way interfered with the conduct of the railroad business, they could legitimately have been asked to leave." (Id. at pp. 851-852, 64 Cal.Rptr. 97, 434 P.2d 353, fn. omitted.)

In In re Lane (1969) 71 Cal.2d 872, 79 Cal.Rptr. 729, 457 P.2d 561, we applied our earlier holding in Schwartz-Torrance to conclude that a union had a right to distribute handbills on a privately owned sidewalk outside a business. We held that the sidewalk "is not private in the sense of not being open to the public. The public is openly invited to use it in gaining access to the store and in leaving the premises." (Id. at p. 878, 79 Cal.Rptr. 729, 457 P.2d 561.) We held, therefore, that the privately owned sidewalk was "a public area in which members of the public may exercise First Amendment rights," including peacefully distributing handbills: "[W]hen a business establishment invites the public generally to patronize its store and in doing so to traverse a sidewalk opened for access by the public the fact of private ownership of the sidewalk does not operate to strip the members of the public of their rights to exercise First Amendment privileges on the sidewalk at or near the place of entry to the establishment. In utilizing the sidewalk for such purposes those seeking to exercise such rights may not do so in a manner to obstruct or unreasonably interfere with free ingress or egress to or from the premises." (Ibid.)

During the interim between our decisions in Schwartz-Torrance and Lane, the United States Supreme Court adopted a similar position, holding in Food Employees v. Logan Plaza (1968) 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (disapproved in Hudgens v. NLRB (1976) 424 U.S. 507, 518, 96 S.Ct. 1029, 47 L.Ed.2d 196) that peaceful picketing by union members of a business in a shopping center that employed nonunion workers was protected by the First Amendment. The high court observed that that the shopping center in Logan Plaza "is clearly the functional equivalent of the business district" in Marsh. (Food Employees v. Logan Plaza, supra, 391 U.S. at p. 318, 88 S.Ct. 1601.) The high court emphasized the importance of recognizing a union's right to peacefully picket in a shopping center: "Business enterprises located in downtown areas would be subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores. Neither precedent nor policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment." (Id. at pp. 324-325, 88 S.Ct. 1601.)

In Diamond v. Bland (1970) 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733 (Diamond I), we went one step further than the decision in Logan Plaza. Logan Plaza held that a shopping center could not prohibit a union from peacefully picketing one of the stores in the center, but the issue in Diamond I was whether a privately owned shopping center could prohibit free speech activity that was unrelated to the business of the center. In Diamond I, a large privately owned shopping center refused to allow a group called the People's Lobby to solicit signatures on two antipollution initiative petitions. We noted that the *295 United States Supreme Court had held in Logan Plaza that "a shopping center could not absolutely prohibit union picketing of a business located within the Center," but had "expressly declined to decide whether `respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.' [Citation.]" (Id. at p. 661, 91 Cal.Rptr. 501, 477 P.2d 733.) We observed that, prior to the decision in Logan Plaza, we had "reached an identical result" in Schwartz-Torrance, holding that a shopping center could not prohibit peaceful union picketing of a business in the center and, in Lane, had extended that holding to apply to a privately owned sidewalk in front of a business. (Ibid.) We concluded that it was settled that a shopping center could not prohibit free speech activity, such as union picketing, that was related to the business of the shopping center: "This series of cases involving union picketing in shopping centers establishes constitutional protection for picketing and other First Amendment activities which are related in their purpose to the normal use to which the shopping center property is devoted." (Ibid.)

The issue presented in Diamond I was whether a privately owned shopping center could prohibit free speech activity that was unrelated to the business of the shopping center. We acknowledged that it was relevant that in both Schwartz-Torrance and Logan Plaza "the unions involved were picketing businesses located within the shopping centers," because that fact "strengthened the interest of the petitioners in their exercise of the First Amendment activities inside the shopping centers." (Diamond I, supra, 3 Cal.3d 653, 662, 91 Cal.Rptr. 501, 477 P.2d 733.) We explained: "When the activity to be protected is the right to picket an employer, the location of the employer's business is often the only effective locus; alternative locations do not call attention to the problem which is the subject of the picketing and may fail to apply the desired economic pressure." (Ibid.) But even though the interest in conducting free speech activity that is unrelated to the business of the shopping center is significantly less than the interest of a union to picket a business, it remained sufficiently substantial to outweigh the owner's interest in prohibiting such activity: "Therefore, although there is arguable merit to defendants' position that plaintiffs' interest in the exercise of their First Amendment rights at the Center may be less compelling than the First Amendment interests involved in Schwartz-Torrance, Logan Plaza, and Lane, their contention does not justify striking the balance in favor of defendants' property rights. As we have explained, plaintiffs' interest is of significant constitutional dimension, while defendants' concern is no stronger than the interests of the property owners in Schwartz-Torrance, Logan, and Lane." (Id. at p. 663, 91 Cal.Rptr. 501, 477 P.2d 733.) Thus, a privately owned shopping center must permit not only peaceful picketing of businesses in the center, but further must permit free speech activity that is unrelated to the business of the shopping center.

Two years later, the United States Supreme Court in Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, took a different course and disagreed with our decision in Diamond I, holding to the contrary that a privately owned shopping center could prohibit First Amendment activity that was unrelated to the business of the center.

In light of the high court's decision in Lloyd, we reconsidered our decision in Diamond I and, in Diamond v. Bland (1974) 11 Cal.3d 331, 332, 113 Cal.Rptr. 468, 521 *296 P.2d 460 (Diamond II), held that a privately owned shopping center could prohibit free speech activity that was unrelated to the operation of the shopping center. Justice Mosk, joined by Justice Tobriner and, in part, by Justice Sullivan, filed a lengthy and impassioned dissent, urging the court to adhere to its decision in Diamond I on the basis of the California Constitution. He wrote: "For a number of years cases in this state even prior to the federal decision in [Logan Plaza] have held that union members enjoy the right to picket an employer on the property of a privately owned shopping center. These decisions emphasized that an employee who sought to bring his grievance to the attention of the public and apply economic sanctions against his employer could effectively do so only at the place where the business was located, and that any incidental impairment of the shopping center owner's property rights was largely theoretical since he had opened his premises to the public and his right in the property was `worn thin by public usage.' [Citations.] ... [¶] The Diamond [I] opinion recognized that although Schwartz-Torrance and Lane were factually distinguishable in some respects, the distinction did not justify striking a new balance to limit plaintiffs freedom of expression." (Diamond II, supra, 11 Cal.3d 331, 341, 113 Cal.Rptr. 468, 521 P.2d 460 (dis. opn. of Mosk, J.).)

The United States Supreme Court then abandoned its holding in Logan Plaza that a shopping center could not prohibit a union from peacefully picketing one of the stores in the center by holding in Hudgens v. NLRB(1976) 424 U.S. 507, 518, 96 S.Ct. 1029, 47 L.Ed.2d 196, that "the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan [Plaza]." The United States Supreme Court thus held that the First Amendment did not guarantee the right to free speech in a shopping mall. This court, however, did not follow the lead of the high court. Rather, we heeded the wisdom of Justice Mosk's dissent in Diamond II and held in Pruneyard that the California Constitution granted a right to free speech in a privately owned shopping center. (Pruneyard, supra, 23 Cal.3d 899, 902, 153 Cal.Rptr. 854, 592 P.2d 341.)

Our decision that the California Constitution protects the right to free speech in a shopping mall, even though the federal Constitution does not, stems from the differences between the First Amendment to the federal Constitution and article I, section 2 of the California Constitution. We observed in Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 486, 101 Cal.Rptr.2d 470, 12 P.3d 720, that the free speech clause in article I of the California Constitution differs from its counterpart in the federal Constitution both in its language and its scope. "It is beyond peradventure that article I's free speech clause enjoys existence and force independent of the First Amendment's. In section 24, article I states, in these very terms, that `[r]ights guaranteed by [the California] Constitution are not dependent on those guaranteed by the United States Constitution.' This statement extends to all such rights, including article I's right to freedom of speech. For the California Constitution is now, and has always been, a `document of independent force and effect particularly in the area of individual liberties.' [Citations.]" (Gerawan Farming, Inc. v. Lyons, supra, 24 Cal.4th at pp. 489-490, 101 Cal.Rptr.2d 470, 12 P.3d 720.) "As a general rule, ... article I's free speech clause and its right to freedom of speech are not only as broad and as great as the First Amendment's, they are even `broader' and `greater.' [Citations.]" (Gerawan Farming, Inc. v. Lyons, supra, *297 24 Cal.4th 468, 491, 101 Cal.Rptr.2d 470, 12 P.3d 720.)

In Pruneyard, supra, 23 Cal.3d 899, 902, 153 Cal.Rptr. 854, 592 P.2d 341, high school students in the mall were prohibited from soliciting support for their opposition to a United Nations resolution against Zionism. We held that the mall could not prohibit the students' efforts despite the fact that this free speech activity was unrelated to the business of the center. (Ibid.) In so holding, we relied upon our earlier decision in Schwartz-Torrance, which, we noted, "held that a labor union has the right to picket a bakery located in a shopping center." (Id. at p. 909, 153 Cal.Rptr. 854, 592 P.2d 341.) We cautioned, however, that we did not "imply that those who wish to disseminate ideas have free rein," noting our previous "endorsement of time, place, and manner rules." (Id. at p. 910, 153 Cal.Rptr. 854,