Asked by the NLRB to opine whether California law allows a mall owner to restrict a union from distributing handbills calling for a consumer boycott of a mall tenant, the California Supreme Court held that such a restriction violated the state Constitution's free speech clause because a mall is a "public forum." In Fashion Valley Mall LLC v. NLRB, the court rejected the mall owner's argument that its narrow ban on "boycott" activity (while permitting "expressive activity") should pass legal muster. The court opined that, while the mall owner may place reasonable limits on the time, manner and place of "speech," the owner must remain "content" and "viewpoint" neutral as to the substance of the communication. Conversely, private-sector employers that do not open their property to public use are generally not covered by the First Amendment free speech clause. However, employers are cautioned that federal and California law afford employees (union and non-union alike) the right to discuss wages and other terms and conditions of work.
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Union must be allowed to distribute handbills in shopping mall
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