Ruling Says Shopping Centers Are Town Squares

A California judge ruled on Christmas Eve that shopping center common areas are the equivalent of traditional town squares and therefore even though its private property, first amendment rights to free speech and assembly apply.

On December 24, the California Supreme Court ruled 4-3 that its 1980 Pruneyard decision is still good law. That decision had said that because shopping center walkways are the social equivalent of the old traditional town square, therefore distributing leaflets, petitioning, and related free speech activity must be allowed, even though the shopping center is private property.

The new decision is Fashion Valley Mall v National Labor Relations Board, S144753. The particular kind of free speech activity concerned union activists passing out leaflets, suggesting a boycott of one particular store in that shopping center. The case had been in the courts since 1998.

The majority consisted of Chief Justice Ronald George and Justices Carlos Moreno, Joyce Kennard, and Kathryn Werdegar. The dissent was written by Justice Ming Chin and signed by Justices Marvin Baxter and Carol Corrigan. The dissent is fierce. It says, “Pruneyard was wrong when decided. In the nearly three decades that have since elapsed, jurisdictions throughout the nation have overwhelmingly rejected it (this is a reference the fact that most other State Supreme Courts have interpreted their state's free speech provisions to not apply to any private property).” The dissent also says, “The time has come to recognize that we are virtually alone, and that Pruneyard was ill-conceived…Even if we stubbornly maintain our position of ‘magnificent isolation' in the face of this tide of history, we should not carry Pruneyard to the extreme of forbidding private property owners from controlling expressive activity on their property - urging a boycott of its tenants - that is inimical to the purpose for which the property is being used…Assuming free speech rights exist in shopping centers, the fact remains that they are not Hyde Park in London, Central Park in New York, or the National Mall in Washington, D.C.”

The New York Times also reported on the ruling.

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