## Facts

- Fashion Valley Mall, a privately owned regional shopping center open to the public, maintained “Rules of Conduct” regulating expressive activity in common areas.
- One rule prohibited speech “urging customers not to purchase the products or services of any tenant or other business at the center” (a no-boycott advocacy rule).
- A labor union in a dispute with the San Diego Union–Tribune (a mall tenant) distributed leaflets urging shoppers to boycott the newspaper and related advertisers.
- Mall security told the union the leafletting violated the no-boycott rule and demanded the leafletters leave when they refused to stop.
- Related proceedings included federal labor-law claims before the NLRB, but the state case focused on whether the mall’s rule violated free speech rights under the California Constitution.

## Issues

1. Whether a privately owned shopping center open to the public may enforce a rule prohibiting speech that urges customers not to patronize (boycott) mall tenants.
2. Whether such a no-boycott rule is a permissible time, place, and manner restriction or an impermissible content- or viewpoint-based restriction under Article I, section 2(a) of the California Constitution.

## Decision

- The California Supreme Court held the shopping center functioned as a public forum for purposes of California’s free speech clause.
- The court invalidated the no-boycott rule as an unconstitutional restriction on speech protected by Article I, section 2(a).
- The court concluded the mall could not enforce a categorical ban on peaceful leafletting that urges consumers not to patronize a tenant.
- The court recognized that shopping centers may adopt reasonable, content-neutral time, place, and manner regulations to protect safety and order, but not content-based bans aimed at suppressing disfavored messages.

## Legal Principles

- Under California law, large shopping centers open to the public are treated as public forums for state constitutional free speech purposes.
- Regulations on expressive activity in such shopping centers must be content-neutral and reasonable as time, place, and manner controls tied to legitimate interests (e.g., safety, congestion, order).
- A rule singling out boycott advocacy based on its message is content-based and viewpoint-discriminatory and is presumptively invalid under Article I, section 2(a).
- Protecting a mall’s or tenants’ economic interests from adverse speech is not a sufficient justification to prohibit peaceful boycott-related expression in a shopping center’s common areas.

## Conclusion

The California Supreme Court held that, in a shopping center open to the public, a rule banning speech urging consumers not to patronize mall tenants is an unconstitutional content-based restriction under the California Constitution, even though the mall may impose reasonable content-neutral time, place, and manner limits on expressive activity.


Fashion Valley Mall, LLC v. Nat’l Labor Relations Bd., 42 Cal. 4th 850, 172 P.3d 742 (Cal. 2007)