Real Estate & Property Law

New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?

By Robert Thomas (inversecondemnation.com)

In United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008), the Ninth Circuit held that six rules applied by shopping centers to restrict picketing and handbilling by union members violated the state constitution's free speech clause, and therefore impermissibly interfered with protected union activity. We summarized the Ninth Circuit's decision here.

The shopping center owner has filed a cert petition asking the Court to review these Questions Presented:

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), this Court held that states may require private shopping malls to grant third parties access to the malls? common areas for purposes of engaging in certain expressive activity. The third-party activity at issue in PruneYard ? solicitation of signatures on a political petition ? was in support of a cause that the mall did not oppose and that did not conflict with the mall?s commercial interests. The present case raises the following questions, unanswered by PruneYard:

1. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall?s property rights under the Fifth Amendment where the activity ? here, urging patrons to boycott the mall and its stores ? conflicts with the mall?s commercial interests?

2. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall?s First Amendment free speech rights where the expressive activity is in support of a cause opposed by the mall?

The case is now titled Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009). The case's docket entry is here.

Full post as published by inversecondemnation on August 29, 2009 (boomark / email).