Featured Case

A Mall Can’t Be Forced to Host Hostile Demonstrators

Macerich Management Co. v. United Brotherhood of Carpenters

Contact:      Deborah J. La Fetra

Status:      Amicus brief in support of petition for certiorari filed in the United States Supreme Court.  The United States Supreme Court denied the petition. Case closed on November 16, 2009.

Summary:
This case asks whether a private shopping mall can be forced to allow demonstrators or protestors to come onto the mall property to engage in expressive activity against mall management or against tenants in the mall. PLF as amicus argues that the business’ property rights—and First Amendment free speech rights—forbid the government from compelling it to host (and, in effect, to sponsor) expressive activity that is inimical to its commercial purpose.

The case arises from union protests at two California malls, urging shoppers to boycott the malls and particular tenants. The union members did not comply with any of the mall’s rules for expressive activity on the premises. Among other things, the rules forbid expressive activities that identify the mall owner or tenants; require that signs, posters, and other written materials “may not interfere with the commercial purpose” of the mall or its tenants; do not allow participants in expressive activities to “carry or wear any signs, posters or placards”; require a written application must be submitted prior to participants’ engaging in expressive activities; limit the activity to designated areas on mall property; and prohibit expressive activities during 30 days that the mall designates as “peak traffic days.”

The union’s failure to abide by the rules led to arrests and then this lawsuit.

On a 2-1vote, the Ninth Circuit struck down all the rules. Judge Callahan dissented, concluding that each of these rules constitutes a reasonable time, place, and manner regulation. Judge Callahan asserted that, even if free speech rights are extended to expression in private shopping malls, such malls, unlike municipalities, “have an interest in avoiding interference with the commercial purposes of property.”

The mall owners asked the United States Supreme Court to review the case, and PLF is supporting the petition.