The Right to Shout 'Boycott' in a Crowded Shopping Mall

This week the California Supreme Court ruled that the state constitution requires a private shopping mall to allow demonstrations urging customers to boycott its tenants. The case stemmed from a labor dispute that led 30 to 40 members of the Graphic Communications International Union to distribute leaflets in front of the Robinsons-May department store at San Diego's Fashion Valley Mall in 1998. The leaflets laid out the union's complaints about The San Diego Union-Tribune's treatment of its employees and asked people not to shop at Robinsons-May, a major advertiser in the paper. The mall stopped the leafletting, noting that the union had not applied for a permit and in any event was violating the mall's rule against "impeding, competing or interfering with the business of one or more of the stores or merchants in the shopping center by…urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center."

By declaring that the mall has no right to enforce that rule, the California Supreme Court extended a line of cases in which it has held that people have a constitutional right to freedom of speech on other people's property. The U.S. Supreme Court at one time dallied with that notion but has since repudiated it, so the California Supreme Court now bases its position on the state constitution's free speech guarantee, rather than the First Amendment. As Justice Ming W. Chin noted in dissenting from this week's decision, California is virtually alone in holding that the constitutional right to freedom of speech applies to private parties as well as the government. With the exception of New Jersey, all the other states, including those with free speech guarantees essentially the same as California's, either have never taken this approach or have renounced it.

There's a good reason for that. Freedom of speech depends on property rights. If you are forbidden from buying, renting, or borrowing the means to get your message out, whether it's a printing press, a meeting room, TV time, or a computer with an Internet connection, your right to speak your mind does not amount to much. By the same token, property rights help define the limits of the right to free speech. I don't have a right to hold a rally in your living room or write an article on your computer (or cry "fire" in your theater) without your permission. Once freedom of speech is divorced from property rights, courts have to weigh the importance of the speech against the interests of the property owner on a case-by-case basis, which leads to arbitrary and unpredictable results. Meanwhile, by undermining property rights, courts ultimately make freedom of speech less secure.

A PDF of the decision is available here.