California Supreme Court Allows Labor Picketing at Shopping Center

But, the Court also held that the Ralphs Grocery parking lot at the Sacramento area center is NOT a public forum, where speech cannot be prevented.  We posted about the Court of Appeal's decision here, by the way.

The Supreme Court decided that two provisions of California law can protect labor picketing against trespass claims, even though the picketing occurred on private property - a parking lot and entrance to a Ralphs store.   The picketing would be allowed even if non-labor picketing would constitute a trespass.   The way the law allows this is by limiting the grounds under which courts will issue injunctions against picketing to narrow circumstances.  For good measure, the law makes it harder to prove those circumstances than other types of cases.

That sounds a lot like a First Amendment violation to me, because the government is picking and choosing what kind of speech is worthy of protection and what is not.  And that is what Justice Chin essentially said in dissent.  But, the Supreme Court majority disagrees with yours truly on that point, and the Court tends to hold more sway than Greggy's blog, no matter how wrong it is. I kid. :)

OK, here comes a long explanation if you can hang in there - 

So, here's what happened as told by the Supreme Court-

When the College Square Foods Co store opened in July 2007, agents of defendant United Food and Commercial Workers Union Local 8 (the Union) began picketing the store, encouraging people not to shop there because the store‘s employees were not represented by a union and did not have a collective bargaining agreement. The Union‘s agents, in numbers varying between four and eight, walked back and forth on the entrance walkway carrying picket signs, speaking to customers, and handing out flyers. These activities generally occurred five days a week (Wednesday through Sunday) for eight hours a day. The Union‘s agents did not impede customer access to the store.
[ I bolded this because if the union did block access to the store, even the union-friendly law under review would permit an injunction]... Anyway, more from the Court's opinion -

In January 2008, Ralphs notified the Union in writing of its regulations for speech at its Foods Co stores, including the one in College Square. Those store regulations prohibit speech activities within 20 feet of the store‘s entrance and prohibit all such activities during specified hours and for a week before certain designated holidays. The store regulations also prohibit physical contact with any person, the distribution of literature, and the display of any sign larger than two feet by three feet. The Union‘s agents did not adhere to Ralphs‘s speech regulations. In particular, they handed out flyers and stood within five feet of the store‘s entrance. Ralphs asked the Sacramento Police Department to remove the Union‘s agents from the College Square Foods Co store, but the police declined to do so without a court order.

OK, so why did the police refuse to get rid of the trespassers on Ralph's private property?   Because they're in a union, too.   They said would only enforce a court order prohibiting the conduct, unless they saw some sort of crime occurring, which was not happening.  So, off Ralphs went to Court for an injunction, where it met the Moscone Act. 

In essence, the Moscone Act (actually two different laws) says that courts cannot enjoin peaceful picketing, gathering, etc. It also imposes a tough evidentiary burden on employers seeking to obtain an injunction, including a requirement of live witness testimony.

The Court of Appeal decided that Ralphs parking area and store entrance were not public forums, so California's broad constitutional right to free speech in public areas would not apply.  Then  the Court of Appeal said that the Moscone Act unconstitutionally permitted some kinds of speech on private property (labor protests), but did not protect others (e.g., anti-abortion protests).  The lower Court reasoned that when the government chooses one type of content for protection, that violates the First Amendment.

On review, the Supreme Court first held that every outdoor shopping plaza is not a public forum, where the First Amendment protects all kinds of speech:
to be a public forum under our state Constitution‘s liberty-of-speech provision, an area within a
shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store‘s merchandise and advertising displays.
Applying this standard, the Court then decided that the College Station shopping plaza was not a protected public shopping mall where the First Amendment would apply.

So, now, Ralphs has private property and it wants to eject or limit conduct on its property via an injunction against a trespasser.  The Supreme Court had to decide if the Moscone Act's limits on injunctions violated Ralph's constitutional rights.

The Supreme Court decided the Court of Appeal was wrong, and that the Moscone Act can favor union picketing on private property without violating the Constitution.  Here is the Court's explanation of the law itself:
certain activities undertaken during a labor dispute are legal and cannot be enjoined. (Id., §527.3, subd. (b).) Those activities are:

“(1) Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.

“(2) Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers.

“(3) Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests.” (Code Civ. Proc., § 527.3, subd. (b).)

Expressly excluded from the Moscone Act’s protection, however, is “conduct that is unlawful including breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises where a labor dispute exists, or other similar unlawful activity.” (Code Civ. Proc., § 527.3, subd. (e).)

In addition, the law imposes burdens on courts and businesses seeking injunctions for violations:
Section 1138.1 prohibits a court from issuing an injunction during a labor dispute unless, based upon witness testimony that is given in open court and is subject to cross-examination, the court finds each of these facts:

“(1) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threat or committing the unlawful act or actually authoriz[ing] those acts. “(2) That substantial and irreparable injury to complainant’s property will follow.

“(3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief.

“(4) That complainant has no adequate remedy at law.

“(5) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.” (§ 1138.1, subd. (a).)

OK, I've bolded what makes the Moscone Act tough on those who seek injunctions even against violent union conduct that is unprotected.  First, in most cases, a court will issue a temporary injunction  on papers.  For labor injunctions, there must be live testimony. Second, the injunction can be issued only against individuals that violate the Act specifically, not against a whole union, absent proof that the whole union is actually authorizing the conduct. Tough to get the names of the folks breaking stuff outside your store, right?
Oh, and you have to put on evidenced that the police cannot or will not help. Easy breezy!  These requirements just do not apply to temporary injunctions in other contexts.

So, the Supreme Court did not see a problem with this. First, the Court surveyed a long line of cases recognizing the rights of unions to conduct peaceful picketing on private walkways outside of businesses.  The Court then did its best to overcome federal decisions holding that laws could not restrict one kind of speech, but not another.  The Supreme Court's rationale was that the Moscone Act does not restrict speech, it merely insulates union speech from legal action.

The Supreme Court apparently does not agree that the general rules permitting injunctions restrict speech on private property.  That is, if you come to my business to picket about some non-labor related issue, I can obtain an injunction more easily because I don't have to follow the Moscone Act. As such, the California Code of Civil Procedure contains a content bias.

Anyway, there are a number of concurring and dissenting opinions, too. The Chief Justice tried to write a concurrence softening the blow of the majority ruling, but Justice Liu essentially called "bull" on the CJ's opinion, arguing that the CJ's interpretation of the majority's opinion was not supported.  As I said earlier, Justice Chin wrote a dissent that I thought was correct, but what do I know?

This may not be the end of this discussion. The Court appears to have opined on federal law, which means that the U.S. Supreme Court likely has jurisdiction to consider whether the First Amendment trumps California law.  We will see what happens next.

I know, long post, but complex issue.  Bottom line - business owners have little power to exclude union picketing, absent (1) fairly egregious conduct (2) money to conduct a mini-trial in court to obtain an injunction and/or (3) business-friendly local politicians / police.  I emphasize that this decision applies to any business located on private property, such as an office park complex.  It's not limited to grocery stores or malls.  The Moscone Act protects picketing from trespass injunctions all over the place.

The opinion is Ralphs Grocery Co. v. UFCW, Local 8 and the opinion is here.