To Speak or Not To Speak 

A mixed week for free-speech rulings

Thursday, Nov 6 2003

Big suburban shopping malls once dominated the California landscape and lifestyle so completely that the state Supreme Court threw up its hands and designated the gallerias as the new town squares. The point of the landmark Pruneyard Shopping Center ruling in 1979 was that people who have something to say must be allowed to do it at the mall, even though their leafleting and sign carrying would be taking place on some company’s private property.

But just as town squares vanished, or at least turned into desolate quarters of downtown, the malls too are disappearing, being replaced by big-box superstores like Target, Home Depot and Wal-Mart. The law has yet to catch up. Petitioning is common outside superstores, but no rulings yet have cleared up whether standalone big boxes are the new town squares and must surrender some of their control to people exercising their free-speech rights. So far it doesn’t look good. One state court ruled several years ago that a neighborhood Trader Joe’s, at least, is too small to carry the burden of being a public speech forum and did not have to put up with petitioners. Other rulings have limited the reach of the Pruneyard decision, which applies only in California.

The mall remains more familiar territory for the 9th U.S. Circuit Court of Appeals, which on October 30 struck down a rule used by the Glendale Galleria to keep union members with a beef against the Disney-owned American Broadcasting Co. (ABC) from passing out handbills at the entrance to the Disney Store. The bills told would-be shoppers that Haitian workers earn a princely 28 cents an hour making Disney clothes, that 13- and 14-year-olds sewed Disney apparel in Thailand, that the company was eliminating pension contributions to ABC workers, and that company CEO Michael Eisner got a 10-year contract for $900 million.

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The Galleria rule permitted primary labor protests on its premises. Disney Store workers, for example, could have leafleted the store. But if ABC workers were to do it, they had to take Disney’s name off their materials to protect the mall’s interest in ensuring that the store would continue to attract customers. No similar restrictions applied to commercial leaflets.

The National Labor Relations Board said the Galleria rule was no good under California law, and the 9th Circuit agreed. The rule restricted speech content without a good

reason. If a Disney Store worker protest would be allowed to use the company’s name, the court said, there was no reason that an ABC protest couldn’t do the same. Now just imagine union leafleters next to the Disney display at Wal-Mart.


A different protest in another part of town didn’t fare as well in court last week. Ulysses Tory said he was just exercising his free-speech rights, on public property, when he picketed outside the law office of his former attorney — famed O.J. Simpson lawyer Johnnie Cochran. He carried signs calling Cochran a thief and a liar, and even got others to join him in his protest by buying them lunch.

Tory and his group also took their demonstration to the courthouse. One typical sign read, “Unless You have O.J.’s Millions — You’ll be Screwed if You USE J.L. Cochran, Esq.” He’d stop, he told Cochran, in exchange for a payment of, oh, $15,000 (he originally demanded $10 million).

Cochran sued and won an injunction that not only barred Tory from picketing but prevented him from ever saying anything about his ex-lawyer in public. A clear violation of his constitutional right to express his opinion freely? No, the state Court of Appeals said on October 29. A prior restraint against Tory expressing himself was okay in this case, the court reasoned, since the subject matter was a private dispute, and since his allegations against Cochran had been found by a court to be libelous.

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