The Ninth Circuit has held that a California shopping mall operator’s rules banning various speech-related activities on mall property has violated the National Labor Relations Act and engaged in unfair labor practices by prohibiting union picketing and handbilling. United Bhd. of Carpenters and Joiners of Am., Local 848 v. NLRB (9th Cir. 2008) 540 F.3d 957.
This petition for review presents the question of whether six restrictions on expressive activity promulgated and enforced by two California shopping malls infringe on the free speech rights guaranteed by the California State Constitution and therefore interfere with protected union activity in violation of the National Labor Relations Act (“NLRA”) when applied to union picketing and handbilling actions. We hold that the six rules impermissibly infringe free speech rights and unlawfully interfere with protected union activity.
The six “Rules for Public Use of Common Areas” that regulate expressive activity in each mall were:
- Identification Ban: a ban on activities that identify by name the mall owner, manager, or tenants;
- Commercial Purpose Rule: a ban on signage and written materials that interfere with the “commercial purpose” of the mall;
- Signage Ban: a ban on the carrying or wearing of signs;
- Application Requirement: an application process that requires the pre-submission of written materials;
- Designated Areas Rule: the exclusion of exterior areas, including mall sidewalks, from designated areas where expressive activities may occur; and
- Peak Traffic Rule: the prohibition of expressive activities during “peak traffic days.”
The union filed unfair labor practice charges against the mall property manager, claiming a violation of § 8(a)(1) of the NLRA. An administrative law judge that this constituted unfair labor practices by promulgating and enforcing rules that restrict protected collective bargaining activity. The NLRB upheld rules 1, 2 and 4, but found the other three rules to be lawful time, place, or manner restrictions under California law. On appeal, the Ninth Circuit found each of the rules to be either unlawful content-based restrictions, or overbroad restrictions that did not survive strict scrutiny or intermediate scrutiny. Thus, as applied, the rules infringed upon the speakers' free speech rights under the California Constitution and violated § 8(a)(1).