California Upholds Free Speech Access to Malls for Labor Boycotts

On December 24th, the California Supreme Court gave a major Christmas present for labor rights, affirming that under California law, union members in a mall could distribute handbills calling for a consumer boycott of one of the mall's tenants. The decision, Fashion Valley Mall v. NLRB, built on an earlier state high court decision in 1980 that deemed malls to be a "public forum" where the public had free speech rights. The recent decision extended that principle to active labor boycotts -- a critical tool for labor to get its message out to consumers.

New Jersey law extends similar free speech protections in malls, with Massachusetts, Oregon, Colorado and Washington also creating broad free speech rights. Other states have more limited or no protections for speech rights in malls. While federal law gives no general free speech protections on private property, the U.S. Supreme Court has affirmed that states do have the full authority to extend free speech rights to corporate property if they choose. 

A number of states and local governments have taken action to extend free speech access beyond malls:

• California's agricultural labor relations law gives non-employee organizers access to private farm fields to talk to workers. (See §20900 of the CA Agricultural Labor Relations, Solicitation by Non-Employee Organizers regulations).  Massachusetts extends similar free speech access to farm camps for labor organizers. 
• The City of Hartford in 2004 enacted a law giving the general public access to outside areas of retailers located on government-owned property.
• This past legislative session, the Pennsylvania House introduced legislation, HB 1383, to broadly protect free speech at large retail establishments of all kinds.

Extending free speech rights to large retail establishments and other corporate spaces where people congregate is a key action states can take to both strengthen labor rights and expand democratic rights at the same time.