Petition for Writ of Certiorari — Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of American Local 586 (2009) (No. 235)

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me Court, U.S.

Supreme Cour

(al @ 09-235 AUG 24 2009

No. 09-

OFFICE OF THE CLERK

In The

Supreme Court of the GAnited States

MACERICH MANAGEMENT COMPANY and

MACERICH PROPERTY MANAGEMENT COMPANY,

Petitioners,

UNITED BROTHERHOOD OF CARPENTERS

AND JOINERS OF AMERICA LOCAL 586;

UNITED BROTHERHOOD OF CARPENTERS

AND JOINERS OF AMERICA LOCAL 505; and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

. For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

HORVITZ & LEVY LLP KATTEN MUCHIN

STEPHEN E.. NORRIS ROSENMAN LLP

Counsel of Record THOMAS J. LEANSE

JEREMY B. ROSEN STACEY MCKEE KNIGHT

JAMES A. SONNE 2029 Century Park East,

15760 Ventura Boulevard, Suite 2600

18th Floor Los Angeles, California 90067

Encino, California 91436 (310) 788-4400

(818) 995-0800 FAX: (310) 788-4471

FAX: (818) 995-3157

Counsel for Petitioners

ICKLE LAW BRIEF PRINTING CO (800) 225-6984

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

In PruneYard Shopping Center v. Robins, 447

U.S. 74 (1980), this Court held that states may

require private shopping malls to grant third parties

access to the malls’ common areas for purposes of

engaging in certain expressive activity. The third-

party activity at issue in PruneYard — solicitation of

signatures on a political petition — was in support ofa

cause that the mall did not oppose and that did not

conflict with the mali’s commercial interests. The

present case raises the following questions, unan-

swered by PruneYard:

1. Does a state law requirement that a private

shopping mall provide third parties access to the mall

for expressive activity violate the shopping mall’s

property rights under the Fifth Amendment where

the activity — here, urging patrons to boycott the mall

and its stores — conflicts with the mall’s commercial

interests?

2. Does a state law requirement that a private

shopping mall provide third parties access to the mall

for expressive activity violate the shopping mall’s

First Amendment free speech rights where the

expressive activity is in support of a cause opposed by

the mall?

RULE 29.6 STATEMENT

The parties to the proceedings are identified in

the caption of the case. In accordance with Rule 29.6

of the Rules of the Supreme Court of the United

States, petitioners Macerich Management Company,

a California corporation, and Macerich Property

Management Company, LLC, a Delaware limited

liability company, state they are both fully owned by

The Macerich Partnership, L.P., a Delaware limited

partnership. The Macerich Company, a Maryland

corporation, is a publicly traded company and is the

one percent general partner and eighty-seven percent

limited partner of The Macerich Partnership, L.P.

The other limited partners of The Macerich Partner-

ship, L.P., are individuals.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED...........ccccosscosssesscssssenes 1

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CONSTITUTIONAL AND STATUTORY PRO-

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Sy PRR ET OPE BEE CAE oon cscs cccsneveccescssenseeses 3

et ona sal speaviisudssasinrsesasenniavccuseveosonee 3

B. Summary of Proceedings.........................606 4

C. Factual and Procedural History.................. 5

1. MPM’s rules’ governing expressive

TE VELIGO OE TCG TUTE iss cscs cccscensscesenceees 5

2. The Union’s activities promoting a boy-

CE ie SI IID is cscs scinnecsncccnssnccescscnssstes 7

3. The conflicting ALJ and NLRB deci-

SiOMS.....:... ER CLS T ST NT DNTP eM RCE 8

4. The split Ninth Circuit decision, re-

versing the NLRB in part, and the

NLRB’s change of position on the

validity of the malls’ rules..................... 9

. ~ *

— — 0 comin colleen etl a_i el et — —_

TABLE OF CONTENTS —- Continued

REASONS FOR GRANTING THE PETITION..... 12

I. CERTIORARI SHOULD BE GRANTED

TO SETTLE THE IMPORTANT FIFTH

AMENDMENT “TAKING” QUESTIONS

LEFT OPEN BY THE COURT IN

FI iiss cditkectisnacehines veusseucacnuindeeiendes 14

A. The PruneYard Decision, Which Per-

mits Physical Invasions of Shopping

Malls, Has Been Rejected in Several

States, But Adopted in Several Others,

Reflecting a Need for Guidance by

this Court on the Constitutional

LAMICS OF CIS TIOCETIIG 000 sccscscnceccsessesess: 14

B. The Ninth Circuit’s Approach to the

Unanswered Questions of Prune Yard

Ignores Fundamental Differences

Between Public and Private Property

Under the Fifth Amendment............... 21

1. The Ninth Circuit’s decision should

be reviewed because it prevents

a mall from barring expressive

activities that are inimical to the

mall’s commercial interests.............. 21

The Ninth Circuit’s test for deter-

mining whether a mall’s rules are

“content-neutral” should be reviewed

because it prevents malls from “ex-

amining” expressive activities in

attempting to regulate such activi-

cea hotece aside cans sisutuueuidee testes 24

‘>

TABLE OF CONTENTS -— Continued

Page

3. The Ninth Circuit’s broad rejection

of commercially reasonable time,

place, and manner rules gives rise

to a taking in this case and sets a

harmful precedent in support of

takings in many others..................... 28

C. Resolving the Constitutional Question

of Private Property Ownership in this

Case is Critical to Effective and Peace-

ful Labor-Management Relations Under

IN 2-2, rca ccecardcmianhedeeaeanomacentos 31

II. CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE MOUNTING TEN-

SION BETWEEN THE STATE FREE-

DOMS OF SPEECH RECOGNIZED IN

PRUNEYARD AND A MALL'S FIRST

AMENDMENT RIGHT TO REFRAIN

FN He AREER es cssccccnscersscconsncessnsesnseneess 33

EINES Ghieda phic pss cesnixehmnnaciscesscanresssdasnaunineniien 38

APPENDIX

(Bound Separately)

A. Opinion of U.S. Court of Appeals for the

Ninth Circuit (with corrected caption) (Oct.

a ee ee ae App. 1

B. Decision and Order of National Labor

Relations Board (with Dec. 26, 2001 ad-

ministrative decision) (Aug. 27, 2005)....... App. 55

TABLE OF CONTENTS -— Continued

Order of U.S. Court of Appeals for the

Ninth Circuit for supplemental briefing

SN SII hice csscvekesaviasercysnisnensseodeyes App

Order of U.S. Court of Appeals for the

Ninth Circuit to defer submission (Oct. 15,

Order of U.S. Court of Appeals for the

Ninth Circuit to deny rehearing and

rehearing en banc (May 26, 2009) ........... App.

Judgment of U.S. Court of Appeals for the

Ninth Circuit (June 2, 2009).................... App.

Supplemental brief excerpts (Jan. 28,

arc eca ys eel ous caakecinssorackisesasaacnaes App

Dials Tules (Sept. 1O9O)...............c.cccsencseess App.

BIEN MUIIIIIINGE osccecscncsccccsvenscssessscrsccnscecees App.

Application for use of common areas (Dec.

2 dca se cttdangacy dun vaceiandessenucss stank tes App.

Administrative hearing excerpts on union

EVIE CIE, BED vacicccdtessscerscascenssoscssnsse App.

Administrative hearing excerpts on mall

Pe TINE sks casicsacyseiecconessssncsecessevense App.

Page

. 135

. 137

Vil

TABLE OF AUTHORITIES

CASES:

Adderley v. Florida, 385 U.S. 39 (1966).................06.. 27

Alderwood Associates v. Washington Environ-

mental Council, 96 Wash. 2d 230, 635 P.2d

BP IE iehisinnk dx sndntenentiidiaciincacdiitcamieaioi 18, 19, 20

Amalgamated Food Employees Union Local

590 v. Logan Valley Plaza, Inc., 391 U.S. 308

PO i eticia erat oie ete ea cee ee Joe 22

Batchelder v. Allied Stores International, Inc.,

388 Mass. 83, 445 N.E.2d 590 (1983)...........00.000.... 18

Beauharnats v. Illinois, 343 U.S. 250 (1952)............. 26

Bock v. Westminster Mall Co., 819 P.2d 55

7 ES _, : Rae oe aan Re ae Ret oer EEN 18

Chaplinsky v. New Hampshire, 315 U.S. 568

+ RARERRIFERTE RAT are i DORE RUDE ro Oy et er "ee EE TTar ee telco ra 26

Charleston Joint Venture v. McPherson, 308

S.C. 145, 427 S.B.26 GE4 CIGGB) «0... cccscesccseccssccsceseres 17

Citizens for Ethical Government, Inc. vu.

Gwinnett Place Associates, 260 Ga. 245, 392

te PE UII vcs piciadcssnnitcsciavekiascs shscusuensatssunsoeecen ens 16

City of West Des Moines v. Engler, 641 N.W.2d

ey WI II uss vacss dca cca aceupucavesdavenscacvedshawercrnsessé 16

Cologne v. Westfarms Associates, 192 Conn. 48,

A a Be 0 cats cea kenissanecccvavessantexsivesscciecest 16

Cornelius v. NAACP Legal Defense & Educa-

tion Fund, Inc., 473 U.S. 788 (1985) ......................27

vill

TABLE OF AUTHORITIES — Continued

Page

Costco Companies, Inc. v. Gallant, 96 Cal. App.

4th 740, 117 Cal. Rptr. 344 (Ct. App. 2002)........... 29

Eastwood Mall, Inc. v. Slanco, 68 Ohio St. 3d

eg Ge PE BO (Oa ccvitciscccscavesssesencccccscss 17, 20

Empresas Puertorriqueras de Desarollo, Inc. v.

Hernandad Independiente de Empleados

Telefonicos, 2000 PRSC 71 (2000) .......................2.. 18

Fashion Valley Mall, LLC v. NLRB, 129 S. Ct.

a deeds eduleaeideanients 20

Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th

Me Bo Gee Bk tS re passim

Fiesta Mall Venture v. Mecham Recall Com-

mittee, 159 Ariz. 371, 767 P.2d 719 (1988) ............. 16

Guttenberg Taxpayers & Rentpayers Ass'n uv.

Galaxy Towers Condominium Ass’n, 297 N.JJ.

Super. 404, 688 A.2d 156 (N.J. Super. Ct. Ch.

ie tok aceon dale ab aay capenadenpintkensecn’ 18

H-CHH Associates v. Citizens for Represen-

tative Government, 193 Cal. App. 3d 1193,

238 Cal. Retr. 841 (Ct. App. 1987)...........ccccccceseceess 29

Hudgens v. NLRB, 424 U.S. 507 (1976)............... 22, 31

Hurley v. Irish-American Gay, Lesbian & Bi-

sexual Group of Boston, 515 U.S. 557 (1995) ....34, 35

In re Hoffman, 67 Cal. 2d 845, 64 Cal. Rptr. 97

International Longshoremen’s Ass’n v. Allied

International, Inc., 456 U.S. 212 (1982)................. 26

TABLE OF AUTHORITIES — Continued

Page

International Society for Krishna Conscious-

ness, Inc. v. Lee, 505 U.S. 672 (1992) ..............eeeceee 27

Jacobs v. Major, 139 Wis. 2d 492, 407 N.W.2d

SSS (LOST). sccccecsascescseee eee adekesreseses ves. 17, 21

Kaiser Aetna v. United States, 444 U.S. 164

(LOZ B) oie sscossc,noncancesanse ane R ne stecesesscocccccess 14

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) ..... $1, 32

Lehman v. Shaker Heights, 418 U.S. 298 (1974)....... 27

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)......... 15, 22

Miami Herald Publishing Co. v. Tornillo, 418

OR me Pee) oc) | ee ee 35

N.J. Coalition Against War in the Middle East

v. J.M.B. Realty Corp., 138 N.J. 326, 650

A. 2G TET (IBGE) vcccocrte eee aa care cccecscscccccccccces 17

NLRB v. American National Insurance Co., 343

oR ee a eS 2 |

NLRB v. Babcock & Wilcox Co., 351 U.S. 105

NLRB v. Curtin Matheson Scientific, Inc., 494

U.S. 775 Cy ccc care cakes asecessesccvcccc0 3

NLRB v. Denver Building & Construction

Trades Council, 341 U.S. 675 (1961)......................37

Nollan v. California Coastal Commission, 483

ORME Rk ye pm 15

Pacific Gas & Electric Co. v. Public Utilities

Commission of California, 475 U.S. 1 (1986)....34, 35

TABLE OF AUTHORITIES — Continued

Page

People v. DiGuida, 152 Ill. 2d 104, 604 N.E.2d

a Cte dnkaracessvnecksnacesesscssenckdunkenssnsnintasuieenieanandione 19

Perry Education Ass’n v. Perry Local Educators’

Pn ig GS As SF CIE Wicd i en intasccisincextestheeisseussioins 27

Publix Shopping Markets, Inc. v. Tallahasseans

for Practical Law Enforcement, No. 2004 CA

1817, 2005 WL 3673662 (Fla. Cir. Ct. Dec.

Ee SEE iccnn suctncdussedssbiasenssbudedataniebunatmaisamaaenen 19

PruneYard Shopping Center v. Robins, 447 U.S.

POE CUED hains.staukcesiassdactancsignshecadapastenucancaniananean passim

Reimers v. Super Target of Grand Forks, 363

F. Supp. Bd LISE (CD. N.Dd. BOOS) ccocessescccesessesssesconces 16

Republic Aviation Corp. v. NLRB, 324 U.S. 793

Roth v. United States, 354 U.S. 476 (1957) ............... 26

SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d

GGG. GBS PET. LBLE CEB) vn cacoccccocceccccscccecerencccses: 16

Southcenter Joint Venture v. National Demo-

cratic Policy Commission, 113 Wash. 2d 413,

eee re I ne ee 19

State v. Elliott, 548 A.2d 28 (Del. Super. Ct.

i} RE IRE TRA ahem remeron yen Moraceae an uti thin da Men APNEA < 19

State v. Felmet, 302 N.C. 173, 273 S.E.2d 708

5 A eR ee a ean Ry LORI PU EE ey 8 ann. ona sc Sisal L7

State v. Schmid, 84 N.J. 535, 423 A.2d 615

(1980)

TABLE OF AUTHORITIES — Continued

Page

State v. Viglielmo, 105 Haw. 197, 95 P.3d 952

NIE cit cic vcneus scuecGinseepanaincnms disuse saaiadueeanmaianmadeartes 16

State v. Wicklund, 589 N.W.2d 793 (Minn.

EDR PERNA IRE MRR eae Se MD NEE ERR aa E ED 16

Strahan v. Fraier, 156 F. Supp. 2d 80 (D. Mass.

SEITE vascciua ditideadis tnbesednsaeuunaiaepadinavavdedanantivadnadadandaaaen 18

Stranahan v. Fred Meyer, Inc., 331 Or. 38, 11

REESE eel rear en Rae ee 17

Union of Needletrades, Industrial & Textile

Employees v. Superior Court, 56 Cal. App. 4th

996, 65 Cal. Rptr. 838 (Ct. App. 1997)......... 21, 25, 29

United Brotherhood of Carpenters & Joiners of

America v. NLRB, 540 F.3d 957 (9th Cir.

SNETIEE Guiaibucesscaueaaudeussanuciaerasuneunbecusendsuuesesabamicenbaeunsencied 9

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 US.

PE CEE vatacecconstnssinepdcnbtesdsetdiaktapenntibeitendseutinatevticas 26

Western Pennsylvania Socialist Workers 1982

Campaign v. Connecticut General Life In-

surance Co., 612 Pa. 23, 515 A.2d 1331 (1986) ...... 17

Ward v. Rock Against Racism, 491 U.S. 781

SIND ai ciceseaccouabinsetinesouentaednrainexdimsakerinastennes 28, 29, 30

Woodland v. Michigan Citizens Lobby, 423

Mich. 188, 378 N.W.2d 337 (1985)....................00008. 16

Wooley v. Maynard, 430 U.S. 705 (1977) ...................86

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL AND STATUTORY PROVISIONS:

ee dae sehaeeaewais 2

ee en IL 2. 1 onseusansioundeasevaasevurebanavanecaeds 2

Se en, IT 5 oo ak caemnneudeeaeeneaeeeeseeinn 2

ee en, Ur, ss. ccedevnsaeoatonsavensvenonens 2,3

Cs rr er i or Ds veviesavarscuceccsunseneuseneootuaill

nn Oe ED oo igsaseac deca asseasaneouveueréaceal

ee ll ot ashe saesanseotacessauseaig a

I a en ae

29 U.S.C. § 160(f)........ ey 4

OTHER AUTHORITIES:

Gregory C. Sisk, Returning to the PruneYard:

The Unconstitutionality of State-Sanctioned

Trespass in the Name of Speech, 32 Harv. J.L.

Ge FU. FOE BOO (Ie onccrccccccscsssecccrcoctcscecercessstdey OO

PETITION FOR A WRIT OF CERTIORARI

Macerich Management Company and Macerich

Property Management Company (collectively, MPM)

~aspectfully petition this Court for a writ of certiorari

to review the published decision of the United States

Court of Appeals for the Ninth Circuit entered in the

above-entitled proceeding on June 2, 2009, in which

the court affirmed in part an order by the National

Labor Relations Board (NLRB or the Board) and in

which two judges, over a dissenting opinion, reversed

the remaining portion of the NLRB order. The Ninth

Circuit denied rehearing on May 26, 2009, with one

judge dissenting.

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. 1-

54, is reported at 540 F.3d 957. The NLRB order, Pet.

App. 55-134, which was the subject of the enforce-

ment action in the court of appeals under 29 U.S.C.

§ 160(e) and (f), is reported at 345 NLRB 514. The

underlying decision of the Administrative Law Judge

(ALJ), Pet. App. 85-134, is incorporated in the Board’s

order.

JURISDICTION

The court of appeals’ opinion was filed, as

corrected, on October 28, 2008. A timely petition for

rehearing and rehearing en hanc was denied on May

26, 2009, Pet. App. 139-141, and a final judgment was

entered on June 2, 2009, Pet. App. 142-159. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Supremacy Clause of the Constitution of the

United States provides in relevant part that “[t]his

Constitution ... shall be the supreme Law of the

Land ... any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.” U.S.

Const. art. VI, cl. 2.

The First Amendment to the Constitution of the

United States provides in relevant part that “Con-

gress shall make no law ... abridging the freedom of

speech ... or the right of the people peaceably to

assemble... .” U.S. Const. amend. I.

The Fifth Amendment to the Constitution of the

United States provides in relevant part that “[nJo

person shall be ... deprived of life, liberty, or prop-

erty, without due process of law; nor shall private

property be taken for public use, without just com-

pensation.” U.S. Const. amend. V.

The Fourteenth Amendment to the Constitution

of the United States provides in relevant part that

“[nlo State shall... deprive any person of life, liberty,

or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1.

Section 7 of the National Labor Relations Act

provides in relevant part that “[e]mployees shall have

the right to self-organization, to form, join, or assist

labor organizations ... and shall also have the right

to refrain from any or all such activities” with a

limited exception not relevant here. 29 U.S.C. § 157

(2008).

Section 8(a)(1) of the National Labor Relations

Act provides in relevant part that “[i]t shall be an

unfair labor practice for an employer ... to interfere

with, restrain, or coerce employees in the exercise of

the rights guaranteed in [section 7 of the Act].” 29

U.S.C. § 158(a)(1) (2008).

Article I, section 2 of the California Constitution

provides in relevant part that “[elvery person may

freely speak, write and publish his or her sentiments

on all subjects, being responsible for the abuse of this

right. A law may not restrain or abridge liberty of

speech or press.” Cal. Const. art. I, § 2(a).

STATEMENT OF THE CASE

A. Jurisdiction

Jurisdiction is premised upon a petition by the

NLRB for enforcement of a Board order, pursuant to

29 U.S.C. § 160(e), and cross-petitions by the United

Brotherhood of Carpenters and Joiners cf America

Locals 586 and 505 (collectively, the Union) and MPM

for review of the Board’s order, pursuant to 29 U.S.C.

§ 160(f).

B. Summary of Proceedings

The Board order reviewed in the court of appeals

addresses the validity of six rules adopted by two

privately-owned shopping malls in California to

regulate public use of the mall’s common areas for

expressive activities. The Board found that three of

these rules violated federal labor law when applied to

certain protest activities of the Union, while the other

three rules did not. One Board member dissented

from the latter finding.

On cross-petitions for review, the court of appeals

held that all six of the mall rules violated federal

labor law. The court held that any property rights

that the malls might have are subordinated to a

requirement of California law that the common areas

of a shopping mall must be available for third-party

expressive activities. The court did not address

MPM’s position that the federal constitution limits

the extent to which states may interfere with private

property rights. One panel member dissented from

the majority’s invalidation of the rules that the Board

had approved. The panel, by a 2-1 vote, denied

rehearing. The court denied en banc review.

C. Factual and Procedural History’

1. MPM’s rules governing expressive activ-

ities at its malls

MPM operates shopping malls in California. As

part of its operations, MPM has adopted a number of

rules governing the public’s use of its malls’ common

areas. These rules are designed to provide reasonable

access to the malls’ common areas for non-commercial

expressive activities by members of the public while

regulating conduct that MPM considers to be unduly

disruptive to mall business and public safety.

The six MPM rules at issue, as numbered and

labeled by the court of appeals, are as follows:

Rule 1 (identification ban): the mall will not ap-

prove expressive activities that identify the

mall owner or tenants.

Rule 2 (commercial purpose rule): signs, posters,

and other written materials “may not inter-

fere with the commercial purpose” of the

mall or its tenants.

Rule 3 (signage ban): participants in expressive

activities “may not carry or wear any signs,

posters or placards.”

1 . . . . ‘ .

Unless indicated otherwise, the factual] history ts derived

from the court of appeals’ opinion.

Rule 4 (application requirement): a written appli-

cation must be submitted prior to partici-

pants’ engaging in expressive activities.

Rule 5 (designated areas rule): expressive activ-

ities are limited to designated areas on mall

property.

Rule 6 (peak traffic rule): no expressive activities

are permitted during 30 days that the mall

designates as “peak traffic days.”

The rules state further that they do not bar any

activities that are protected by state or federal labor

law. Pet. App. 169. The rules, which are the same at

both malls on all relevant points, are provided in full

in the appendix. Pet. App. 169-89.

According to MPM, the purpose of its shopping

malls is to sell goods and services. Pet. App. 278.

MPM contends that its rules were designed to ensure

a safe and secure environment for shoppers and to

honor the expressive rights of others without unduly

jeopardizing the commercial interests of mall tenants.

Pet. App. 281. MPM’s stated policy is to allow non-

commercial expressive activity on a neutral basis —

even if the subject matter is unpopular — subject to

reasonable time, place, and manner rules. Pet. App.

210, 212. In the event someone disputes the

application of the rules to a particular expressive

activity, MPM instructs mall management to offer

that person a document that describes his or her

rights under this Court’s holding in PruneYard, 447

U.S. 74. Pet. App. 237, 242-44.

2. The Union’s activities promoting a boy-

cott of the malls

From December 1999 to May 2000, the Union

engaged in expressive activities at two MPM malls to

protest the use of non-unionized labor in the con-

struction of mall tenant stores. During the course of

these activities, the Union distributed handbills,

picketed, and encouraged a consumer boycott of the

malls and certain stores within the malls.

According to Union officials, the protests, which

drew up to forty-five participants, were specifically

designed to discourage mall customers from buying

goods and services at the malls. See Pet. App. 260-65.

Most of the activity.targeted two stores (Sears and

Gottschalks), both of which were located near areas

that were designated for authorized activity under

MPM’s Rule 5. See Pet. App. 189, 258. The Union

refused to submit applications for the use of such

areas because it viewed that requirement (i.e., Rule

4) as a violation of its rights.”

In response to the Union’s protests, MPM

enforced its expressive activity rules, thereby limiting

Union activity on mall property. MPM told the pro-

testers that their actions were disruptive to business

and were not supported by duly filed applications.

* An attorney for the Union purported to submit an ap-

plication for expressive activity on one occasion, but did not offer

a list of participants or copies of the materials that it planned to

use, as required by Rule 4. See Pet. App. 261-67, 269-70.

The interactions between mall officials and the

protesters were often contentious. One mall official

testified to being afraid and several arrests were

made. Pet. App. 273-75.

3. The conflicting ALJ and NLRB deci-

sions

The Union responded to MPM’s enforcement of

its rules by filing a charge with the NLRB, alleging

that the six rules described above constituted unfair

labor practices in violation of Section 8(a)(1) of the

National Labor Relations Act, 29 U.S.C. § 158(a)(1)

(NLRA). The ALJ found that Rule 1 (identification

ban), Rule 2 (commercial purpose rule), Rule 3

(signage ban), and Rule 4 (application requirement)

are content-based rules that violate California law

and, thus, their use violates Section 8(a)(1). Pet. App.

119-20. The ALJ also found that Rule 5 (designated

areas rule) and Rule 6 (peak traffic rule) violate

Section 8(a)(1) because they bar use of sidewalks

within the mall and, as such, are not valid time,

place, and manner rules. Pet. App. 120-22.

The NLRB agreed with the ALJ in rejecting Rule

1 (identification ban), Rule 2 (commercial purpose

rule}, and Rule 4 (application requirement) as

improper content-based rules. Pet. App. 61-63. The

Board, however, upheld Rule 3 (signage ban), Rule 5

(designated areas rule), and Rule 6 (peak traffic rule)

as valid time, place, and manner rules. Pet. App.

64-71. Member Liebman dissented as to the Board’s

approval of the latter three rules. Pet. App. 76-81.

4. The split Ninth Circuit decision, revers-

ing the NLRB in part, and the NLRB’s

change of position on the validity of the

malls’ rules

On October 24, 2005, the NLRB filed a petition

for enforcement of its order with the court of appeals.

The Union and MPM filed cross-petitions for review.

The cases were consolidated and the parties sub-

mitted briefs. On October 15, 2007, the court of

appeals deferred submission until the Supreme Court

of California issued its opinion in Fashion Valley

Mall, LLC v. NLRB, which it did on December 24,

2007. 42 Cal. 4th 850, 172 P2d 742 (2007). Pet. App.

137-38. Pursuant to a December 28, 2007 order of the

court of appeals, Pet. App. 135-36, the parties filed

supplemental briefs to address the impact of Fashion

Valley.”

On August 25, 2008, the Ninth Circuit issued its

decision: United Brotherhood of Carpenters & Joiners

of America v. NLRB, 540 F.3d 957 (9th Cir. 2008). The

court later re-issued its opinion, but only to correct an

* The Union and NLRB moved to strike the part of MPM’s

supplemental brief contending that the application of the

Fashion Valley holding would result in a taking in violation of

the Fifth Amendment. The court of appeals did not grant the

motion. The brief section is provided in the appendix at pages

164 to 168

error in the caption. Pet. App. 51-54. The panel

majority rejected all six of the mall rules as follows:

Rule 1 (identification ban): The court held that

Rule 1 is content-based and thus subject to

strict scrutiny. The court held that Rule 1

fails strict scrutiny because its stated pur-

pose of “protect[ing] the ‘good name’ of the

mall and its tenants” was not a compelling

interest. Pet. App. 15-16.

Rule 2 (commercial purpose rule): The court held

that Rule 2 is content-based because it “re-

quires that the regulating authority examine

the content of the written material to

determine whether it complies” with the rule

and that the rule fails strict scrutiny because

it “is entirely motivated by hostility towards

messages critical of the mall or its tenants.”

Pet. App. 16.

Rule 3 (signage ban): The court held that Rule 3

is content-neutral, but can only be enforced if

(1) it is “justified without reference to the

content,” (2) it is “narrowly tailored to serve

a significant interest,” and (3) alternative

communication channels remain. Pet. App.

20-21. The court held that the ban is not

narrowly tailored to promote a significant

mall interest and does not leave open ample

alternative means of communication. Pet.

App. 24-25.

Rule 4 (application requirement): The court held

that Rule 4 was invalid, albeit only to en-

force Rules 1 and 2, because it requires

“examination of a speaker’s message.” Pet.

App. 19.

Rule 5 (designated areas rule): The Union con-

ceded that Rule 5 is content-neutral, but the

court held that its ban on mall sidewalk use

is not narrowly tailored to traffic flow and

fire code compliance and that the sidewalk

ban and distance of designated areas from

the stores does not leave open ample alter-

native means of communication. Pet. App.

29-31.

Rule 6 (peak traffic rule): The court held that

Rule 6 is content-neutral, but that the total

ban during the 30 peak shopping days is not

narrowly tailored to promote pedestrian

traffic flow or safety, or to minimize con-

gestion. The court also held the rule did not

provide sufficient alternative means of com-

munication because 75 percent of mall sales

occur during the peak traffic days, i.e.,

during the holidays. Pet. App. 32-33.

Judge Callahan dissented from the majority’s

holding to strike down Rule 3 (signage ban), Rule 5

(designated areas rule), and Rule 6 (peak traffic rule).

Pet. App. 34-35 (Callahan, J., concurring in part,

dissenting in part). She concluded that each of these

rules constitutes a reasonable time, place, and man-

ner regulation, as the NLRB had found in its order.

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.” Pet. App. 38-39.

MPM filed a timely petition for panel rehearing

and rehearing en banc. Shortly thereafter, the NLRB

indicated that it would no longer support Rules 3, 5,

and 6, as it had in its order and in its briefing to that

point. MPM moved to intervene to continue the

defense of those rules. The court granted MPM’s

motion. Pet. App. 141.

On May 26, 2009, the panel majority, with Judge

Callahan dissenting, denied MPM’s petition for panel

rehearing and announced that there was insufficient

support on the court for rehearing en banc. Pet. App.

139-41. The court’s final judgment, which incorpo-

rated a revised NLRB order to strike down all six

mall rules, was entered on June 2, 2009. Pet. App.

142-59.

REASONS FOR GRANTING THE PETITION

This case raises critical, recurring questions

about the extent to which a private shopping mall

may limit expressive activities of third parties in the

mall’s common areas, particularly where those activ-

ities clash with the mall’s commercial purposes and

those of its tenants. Some of these questions arise

under the Fifth Amendment, which generally protects

private malls against unwanted invasions of their

property. The other questions arise under the First

Amendment, which generally protects private mall

owners in their exercise of speech, including their

decision to refrain from speaking or sponsoring the

messages of another.

The Court recognized a narrow exception to the

foregoing constitutional guarantees in PruneYard,

447 U.S. 74. The Court held that even though the

federal constitution does not require mall owners to

grant the public access to mall property to engage in

expressive activities, a state may impose such a

requirement. The expressive activity at issue in

PruneYard, however, was unrelated to mall business,

was in support of a cause not opposed by the mall,

and was not contrary to the mall’s commercial

interests. Also, in PruneYard, the California Supreme

Court had indicated that malls would be permitted to

adopt reasonable regulations to protect their com-

mercial operations.

PruneYard \eft open the federal constitutional

issues that are squarely presented here, where state

law requires a shopping mall to permit third-party

expressive activity that encourages conduct — here, a

boycott of the mall — that the mall opposes and that

conflicts with the mall’s commercial interests.

PruneYard likewise reserved the federal constitu-

tional issues arising where state law seriously limits

the extent to which the mall may adopt reasonable

time, place, and manner restrictions on expressive

activity. Here, for example, the Ninth Circuit has held

that state law precludes a mall from either limiting

expressive activities to designated areas within the

mall or prohibiting such activities on the mall’s peak

traffic days.

Answers to these open questions are sorely

needed, not only by the thousands of private shopping

malls and mall tenants that are affected, but also by

those groups and individuals seeking to engage in

expressive activities at malls as well as the gov-

ernment agencies (the NLRB in this case) charged

with protecting expressive activity while limiting the

conscription of private property.

CERTIORARI SHOULD BE GRANTED TO

SETTLE THE IMPORTANT FIFTH AMEND-

MENT “TAKING” QUESTIONS LEFT OPEN

BY THE COURT IN PRUNEYARD.

A. The PruneYard Decision, Which Per-

mits Physical Invasions of Shopping

Malls, Has Been Rejected in Several

States, But Adopted in Several Others,

Reflecting a Need for Guidance by this

Court on the Constitutional Limits of

the Doctrine.

A physical invasion of an owner’s property gen-

erally constitutes a taking under the Fifth Amend-

ment. Kaiser Aetna v. United States, 444 U.S. 164,

179-80 (1979). The “‘right to exclude’” others is “uni

versally held to be a fundamental element of the

property right” in this context. Jd.

“‘A] ‘permanent physical occupation’ has oc

curred” for taking purposes if there is a continual

right to invade, even if each instance of invasion by a

person or group is temporary. Nollan v. Cal. Coastal

Comm'n, 483 U.S. 825, 832 (1987). Private property

does not lose its constitutional protection, moreover,

“merely because the public is generally invited to use

it for designated purposes.” Lloyd Corp. v. Tanner,

407 U.S. 551, 569 (1972).

In PruneYard, the Court created a narrow

exception to the well-established rule that a physical

invasion of private property generally constitutes a

taking. The Court upheld a state law requirement

that private shopping malls allow public access for

expressive activity. The activity in that case, however,

was in support of a cause that was not opposed by the

mail or contrary to its commercial interests. In

upholding the state requirement, moreover, the Court

expressly limited the scope of its holding, noting

that the “sort of activity” at issue — solicitation of

Signatures on petitions opposing a U.N. resolution

against “Zionism” — did not “impair the value” of the

mall. 447 U.S. at 83 (emphasis added). Furthermore,

the Court emphasized that the California Supreme

Court had provided assurances that shopping malls

may “restrict expressive activity by adopting time,

place, and manner regulations that will minimize any

interference with [their] commercial functions.” Id.

(emphasis added).

The Court readily acknowledged in PruneYard

that requiring the owner of a shopping mall to grant

members of the public access to the mall’s common

areas to engage in expressive activities constitutes a

taking in the literal sense, but held that requiring a

mall to permit non-commercial, political activities in

support of a cause that is not contrary to the mall’s

commercial interests does not result in a compensable

taking. The Court left open the question whether a

state law requirement that a mall permit non-

political speech that is demonstrably contrary to the

mall’s commercial interests and opposed by the mall

might be a taking.

After PruneYard, the states and lower federal

courts have reached conflicting decisions about the

extent to which a shopping mall must permit its prop-

erty to be open to the public to promote causes that

are contrary, and in some cases inimical, to the mall’s

commercial interests. Only this Court has the power

to conclusively resolve these troublesome questions.

On one end of the post-PruneYard spectrum,

about fifteen states have protected private shopping

malls from harmful physical invasions by declining to

extend any state law protection to expressive activity

in malls. See Reimers v. Super Target of Grand Forks,

363 F.Supp. 2d 1182 (D. N.D. 2005); Fiesta Mall

Venture v. Mecham Recall Comm., 159 Ariz. 371, 767

P.2d 719 (1988); Cologne v. Westfarms Assocs., 192

Conn. 48, 469 A.2d 1201 (1984): Citizens for Ethical

Govt, Inc. v. Gwinnett Place Assocs., 260 Ga. 245, 392

S.E.2d 8 (1990); State v. Viglielmo, 105 Haw. 197, 95

P.3d 952 (2004); City of W. Des Moines v. Engler, 641

N.W.2d 803 (lowa 2002); Woodland v. Mich. Citizens

Lobby, 423 Mich. 188, 378 N.W.2d 337 (1985); State v.

Wicklund, 589 N.W.2d 793 (Minn. 1999); SHAD

Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 488

N.E.2d 1211 (1985); State v. Felmet, 302 N.C. 173, 273

S.E.2d 708 (1981); Eastwood Mall, Inc. v. Slanco, 68

Ohio St. 3d 221, 626 N.E.2d 59 (1994); Stranahan v.

Fred Meyer, Inc., 331 Or. 38, 11 P.3d 228 (2000); W.

Pa. Socialist Workers 1982 Campaign v. Conn. Gen.

Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (1986);

Charleston Joint Venture v. McPherson, 308 S.C. 145,

417 S.E.2d 544 (1992); Jacobs v. Major, 139 Wis. 2d

492, 407 N.W.2d 832 (1987).

At the other end of the spectrum, several other

states (including California and New Jersey, which

consist of about fifteen percent of the national

population) have treated private shopping malls as

virtually indistinguishable from municipalities in

requiring them to host expressive activity even if

contrary to the mall’s commercial interests. See

Fashion Valley, 42 Cal. 4th at 869-70, 172 P3d at 754

(construing state law to require mall to offer access

for a boycott of one of its stores because, according to

state court, mall was a public forum); N.J. Coal.

Against War in the Middle East v. J.M.B. Realty

Corp., 138 N.J. 326, 362, 650 A.2d 757, 775 (1994)

(construing state law to require mall to permit anti-

war leafletting; malls’ general invitation to the public

constituted an invitation for the activity).* Puerto

* The need for guidance is even more acute in light of

decisions of New Jersey courts to extend the PruneYard holding

beyond shopping malls to include private colleges and private

condominium complexes. See State v. Schmid, 84 N.J. 535, 423

(Continued on following page)

Rico has similarly allowed mall protests based on

its understanding of malls as the new town squares —

at least in a case where the mall housed a public

agency to which the protest was directed. Empresas

Puertorriquenas de Desarrollo, Inc. v. Hermandad

Independiente de Empleados Telefonicos, 2000 PRSC

71 (2000).

The Ninth Circuit opinion in this case, applying

California law, is the most extreme application of

PruneYard to date, not only requiring a shopping mall

to host expressive activities endorsing a boycott of the

mall and its tenant stores, but also barring it from

enforcing reasonable time, place, and manner rules.

See Pet. App. 3-6, 34.

In addition to the courts in New Jersey,

California, and Puerto Rico, a number of other states,

including Colorado, Massachusetts, and Washington

have extended protection for expressive activity in

private malls in support of non-commercial, election-

related activities. See, e.g., Strahan v. Frater, 156

F. Supp. 2d 80 (D. Mass. 2001); Bock v. Westminster

Mall Co., 819 P.2d 55 (Colo. 1991); Batchelder v.

Allied Stores Int'l, Inc., 388 Mass. 83, 445 N.E.2d 590

(1983); Alderwood Assocs. v. Wash. Envtl. Council,

96 Wash. 2d 230, 635 P.2d 197 (1981); accord

A.2d 615 (1980), appeal dismissed sub nom. Princeton Univ. v.

Schmid, 455 U.S. 100 (1982); Guttenberg Taxpayers & Rent-

payers Ass’n v. Galaxy Towers Condominium Ass'n, 297 N.J.

Super. 404, 688 A.2d 156 (N.J. Super. Ct. Ch. Div. 1996).

Southcenter Joint Venture v. Natl Democratic Policy

Comm., 113 Wash. 2d 413, 780 P.2d 1282 (1989)

(limiting Alderwood to petitioning context).”

Despite the seemingly limited nature of the last

group of cases, those states have essentially adopted

the rationale underlying the decisions of the New

Jersey and California courts. For example, in

Alderwood, the Supreme Court of Washington upheld

the mght of an environmentalist group to solicit

signatures on mall property, concluding that “(t]he

only offsetting consideration is the mall owners’

private autonomy interests, which are quite mii .mal

in the context of shopping centers.” 96 Wash. 2d at

246 (emphasis added). In any event, having required

shopping malls to provide access to the public for

expressive activities, these states no less than

California and New Jersey, also require guidance

on the issue whether expressive activity on a mall’s

property that is contrary to the mall’s commercial

interests constitutes an unconstitutional taking of

mall property.

* Courts in Delaware, Florida, and Illinois have indicated a

willingness to expand speech protection in large shopping malls,

although cases have yet to present themselves. See State v.

Elliott, 548 A.2d 28, 33 (Del. Super. Ct. 1988); Publix Shopping

Markets, Inc. v. Tallahasseans for Practical Law Enforcement,

No. 2004 CA 1817, 2005 WL 3673662, at *4 (Fla. Cir. Ct. Dec. 13,

2005); People v. DiGuida,. 152 Ill. 2d 104, 126, 604 N.E.2d 336,

349 (1992).

Given the sweeping decisions in cases such as

Fashion Valley and the present case, and the sim-

ilarly sweeping dicta in decisions such as Alderwood,

there is a compelling need for this Court to address

the extent to which states may require malls to

provide access to their facilities for non-political

speech, contrary to the mall’s commercial interests,

without depriving the shopping mall of the protection

against takings guaranteed by the Fifth and

Fourteenth Amendments. As the Supreme Court of

Ohio has observed, “[a] state may adopt greater pro-

tections for free speech on private property than the

First Amendment does, so long as those broader

protections do not conflict with the private property

owner’s constitutional rights under the First, Fifth

and Fourteenth Amendments.” Eastwood Mall, 68

Ohio St. 3d at 222, 626 N.E.2d at 60-61 (emphasis

added). The question presented as to that Fifth

Amendment limit affects numerous states, with

millions of citizens and thousands of businesses

involved. It is a pressing one that cries out to the

Court for an answer.”

* Certiorari was denied in Fashion Valley Mall, LLC uv.

NLRB, 129 S. Ct. 94 (2008). MPM submits that the present case

offers stronger reasons for a grant of certiorari than did Fashion

Valley because it raises multiple issues not present in Fashion

Valley, including the proper test for determining content-

neutrality and, as described »elow, the rejection of reasonable

time, place, and manner restrictions.

B. The Ninth Circuit’s Approach to the

Unanswered Questions of PruneYard

Ignores Fundamental Differences Be-

tween Public and Private Property

Under the Fifth Amendment.

1. The Ninth Circuit’s decision should

be reviewed because it prevents

a mall from barring expressive

activities that are inimical to the

mall’s commercial interests.

As explained by the dissent in Fashion Valley, 42

Cal. 4th at 878, 172 P.3d at 760 (Chin, J., dissenting),

private property owners should not be prevented from

“controlling expressive activity on their property ...

that is inimical to the purpose for which the property

is being used.” Promoting business on _ private

property “is not only a compelling interest, it is the

property owner’s primary concern; doing business is

the reason the shopping center exists.” Jd. at 881, 172

P.3d at 762; see also Union of Needletrades, Indus. &

Textile Employees v. Superior Court (UNITE), 56 Cal.

App. 4th 996, 1000, 65 Cal. Rptr. 838 (Ct. App. 1997)

(upholding mall’s right to review speakers’ written

materials to prevent interference with mall’s com-

mercial purpose; “the right to conduct expressive

activities in a shopping center is not absolute”). As

the Supreme Court of Wisconsin has observed, a

private mall “concerns itself only with one facet of its

patrons’ lives — how they spend their money.” Jacobs,

139 Wis. 2d at 523.

Justice Black captured the point in his dissent in

Amalgamated Food Employees Union Local 590 ov.

Logan Valley Plaza, Inc., 391 U.S. 308 (1968), where

the majority had required handbilling at a private

shopping center under the First Amendment. He

wrote: “To hold that store owners are compelled by

law to supply picketing areas for pickets to drive

store customers away is to create a court-made law

wholly disregarding the constitutional basis on which

private ownership of property rests in this country.”

Id. at 332-33 (Black, J., dissenting). In Lloyd, 407

U.S. 551, the Court abrogated its holding to the

contrary, thereby vindicating Justice Black. Jd. at

552-63, 565; see Hudgens v. NLRB, 424 U.S. 507, 518

(1976) (noting abrogation of Logan Valley).

PruneYard distinguished Lloyd, but it did not go

nearly so far as the Ninth Circuit opinion in this case

or the California Supreme Court’s 4-3 holding in

Fashion Valley, which both sanction a physical in-

vasion of the owner’s property for the purpose of

engaging in activities that are directly contrary to the

owner’s commercial interests. An isolated petition to

the United Nations by a group of high school students

that is merely marketed on mall property, as in

PruneYard, is quite different than a concerted effort

by union professionals to bring mall business to a

halt.

The facts in this case demonstrate the need for

an approach to takings analysis that permits courts

to give meaningful consideration to a shopping mall’s

commercial interests before upholding a_ state-

sanctioned invasion of mall property. At a minimum,

in applying the “compelling state interest” test to

private businesses, it seems both logical and proper to

replace the word “state” with the word “business”

when evaluating the validity of regulations of ex-

pressive activity. See Fashion Valley, 42 Cal. 4th at

881, 172 P.3d at 762 (Chin, J., dissenting) (positing

that, when applied to private businesses, “(t]he

compelling state interest test would have to yield to

... [a] ‘compelling landowner interest’ test”). As the

Court pointed out in PruneYard, “the Taking Clause

requires an examination of whether the restriction on

private property forces some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.” 447 U.S. at

83 (internal quotation marks and alterations omitted).

Applying these general principles to this case,

MPM’s Rule 2, which bans signs and written

materials that interfere with the “commercial pur-

pose” of the mall, is a constitutionally-protected

exercise of property rights and the Ninth Circuit’s

decision invalidating Rule 2 therefore improperly

sanctions a taking of mall property. Likewise, the

Ninth Circuit’s invalidation of Rule 1, which protects

against identification of the mall and its stores,

similarly interferes with the mall’s commercial inter-

ests and, therefore, constitutes an unconstitutional

taking. To the extent that Rule 4’s application process

supports Rules 1 and 2, that rule should similarly be

constitutionally protected.

2. The Ninth Circuit’s test for deter-

mining whether a mall’s rules are

“content-neutral” should be reviewed

because it prevents malls from “ex-

amining” expressive activities in

attempting to regulate such activ-

ities.

The test applied by the Ninth Circuit to deter-

mine whether a mall’s rules are “content-neutral”

under California law effectively precludes mall

owners from rejecting any expressive activities based

on content, once again bringing California state law

into conflict with the mall’s Fifth Amendment

property rights. Under the test articulated by the

Ninth Circuit to determine whether a mall’s rules

are content-neutral, a mall may not “examine” the

content of proposed expressive activities for any

business purpose. Pet. App. 13. The Ninth Circuit

applied this test to strike down Rule 1 (precluding

expressive activities that identify the mall or its

tenants) and Rule 2 (precluding use of written

materials that interfere with the “commercial pur-

pose” of the mall), holding that because the imple-

mentation of the rules requires the mall to examine

the content of the proposed expressive activity, the

rules are invalid under the “strict scrutiny” test

applied to strike down state action in First Amend-

ment cases. Pet. App. 14-17.

The Ninth Circuit’s test for determining whether

a mall’s rules are “content-neutral” merits review by

this Court. A shopping mall has a compelling interest

in examining speech for many legitimate purposes,

including the prevention of activities designed to

bring about the destruction of its business or to

provoke disturbances on mall property. As explained

by the dissent in Fashion Valley, if the speech is

directly contrary to the mall’s commercial interests,

the mall has a valid basis for excluding the speech. 42

Cal. 4th at 880-81, 172 P3d at 761-62; see also

UNITE, 56 Cal. App. 4th at 1018, 65 Cal. Rptr. 2d at

838 (“wearing its hat as a center of commerce, [a

mall] has the right (if not the obligation) to take steps

to avoid a breach of the peace which is substantially

likely to flow from [a speaker’s] use” of illicit or in-

flammatory materials likely to provoke a disturbance

on the mall’s property).

Under the Ninth Circuit’s test, a mall owner

would be unable to engage in the following conduct,

all of which is consistent with protecting the mall’s

commercial interests and many valid public policies:

Examining speech to determine if it is a pretext

for unfair competition (e.g., advertising or

other commercial promotions by third par-

ties, appropriation of name or likeness)

Examining speech relating to a boycott to confirm

that it is not illegal secondary boycott

activity under federal labor law

Examining speech to determine if it is de-

famatory

Examining speech to determine if it violates

common law privacy rights, such as public

disclosure of private facts or presentation in

a false light

Examining speech to determine whether it is

obscene, contains fighting words, grisly dis-

plays inappropriate for a shopping mall,

racial or ethnic slurs likely to provoke a

disturbance, or violates civil rights laws

Such blind application of the content-neutrality test

to private shopping malls ignores the fundamental

nature and purposes of such entities and exceeds the

limited scope of Prune Yard.

Worse yet, the Ninth Circuit’s test imposes a

standard of free speech accommodation that even the

government itself is not required to meet. The

government is allowed to regulate commercial speech,

outlaw secondary boycotts, protect citizens against

defamation, and proscribe fighting words or obscenity.

See Int'l Longshoremen’s Ass’n v. Allied Int'l, Inc., 456

U.S. 212 (1982) (secondary boycotts); Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425

U.S. 748 (1976) (commercial speech); Roth v. United

States, 354 U.S. 476 (1957) (obscenity); Beauharnais

v. Illinois, 343 U.S. 250 (1952) (defamation);

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

(fighting words). Under the Ninth Circuit’s test,

however, private shopping malls are not afforded the

same privilege in analogous situations.

Moreover, even if it were otherwise appropriate

to treat private shopping malls as state actors for free

speech purposes, the court of appeals also mistakenly

equates shopping malls to traditional public forums

or designated public forums that otherwise are

subject to such scrutiny. See Perry Educ. Ass’n uv.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45-47

(1983). The comparison is inapt.

In Perry, the Court reserved strict scrutiny to

“places which by long tradition or by government fiat

have been devoted to assembly and debate” or to

“public property which the state has opened for use

by the public as a place for expressive activity.” Jd. at

45. The Court distinguished these two types of

forums from more limited public forums, particularly

those where business is conducted, in which a much

lower level of scrutiny is applied. /d. at 46-47. When

the state acts as a proprietor rather than a regulator,

it is given wide discretion. As such, the regulation

need only be reasonable and viewpoint neutral. Jnt’l

Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.

672, 679 (1992). Pertinent examples of limited public

forums have included airports, city buses, and the

federal workplace. See id. (airports); Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788

(1985) (federal workplace); Lehman v. Shaker

Heights, 418 U.S. 298 (1974) (city transit systems).

As the Court observed in Adderley v. Florida, 385

U.S. 39, 47 (1966), “[t]he State, no less than a private

owner of property, has power to preserve the property

under its control for the use to which it is lawfully

dedicated.” If private mall owners are to be subjected

to the same burdens as the government, they should

at least share the same level of discretion in con-

ducting their affairs as does the government.

3. The Ninth Circuit’s broad rejection

of commercially reasonable time,

place, and manner rules gives rise

to a taking in this case and sets a

harmful precedent in support of

takings in many others.

In allowing a limited physical invasion of private

property in PruneYard, the Court relied upon the

state’s assurances that the shopping mall “may

restrict expressive activity by adopting time, place,

and manner regulations that will minimize any

interference with its commercial functions.” 447 U.S.

at 83.

The constitutional test for time, place, and man-

ner rules is that they must (1) be content-neutral,

(2) be narrowly tailored to serve a significant interest,

and (3) leave open ample alternative channels for

communication. Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989). This “intermediate scrutiny”

test balances the regulation at issue, and the purpose

to which it is directed, with the level of speech

affected and the alternatives available.

In PruneYard, the expressive activity at issue

was orderly and limited to common areas, and

contained a message not otherwise hostile to mall

operations. The same cannot be said in the present

case. Here, in rejecting Rule 3 (signage ban), Rule 5

(designated areas rule), and Rule 6 (peak traffic rule),

the Ninth Circuit not only misunderstood the nature

of the rules, it improperly substituted its own

judgment for that of the malls, in violation of Ward.

The “signage ban” is not in fact a ban, but a limit

on size and placement — i.e., signs must be smaller

than twenty-two by twenty-eight inches and mounted

on tables — so as not to block or compete with

commercial activities. The “designated areas rule”

does not place expressive activity hundreds of yards

from the public, but rather limits it to reasonable

places to minimize disruption and congestion; the

areas were in fact close to the targeted stores in this

case. The peak traffic rule is not a tactic to keep

expressive activity at bay, but a response to

predictable safety and congestion problems that arise

at certain times of the year, like the holiday season.

Versions of such rules had previously been sanctioned

in California courts. See Costco Cos., Inc. v. Gallant,

96 Cal. App. 4th 740, 753, 117 Cal. Rptr. 344 (Ct. App.

2002) (peak traffic days); UNITE, 56 Cal. App. 4th at

1010, 1014, 65 Cal. Rptr. at 838 (designated areas

peak traffic days); H-CHH Assocs. v. Citizens for

Representative Gov't, 193 Cal. App. 3d 1193, 1216,

1220, 238 Cal. Rptr. 841 (Ct. App. 1987), disapproved

on other grounds by Fashion Valley, 42 Cal. 4th at 869

n.12, 172 P.3d at 754 n.12 (sign and peak traffic

limits).

In Ward, the Court stressed that in assessing

time, place, and manner rules, courts must defer to

the reasonable determination of the regulator as to

whether a rule meets a stated property interest. 491

U.S. at 799. Moreover, as Judge Callahan observes in

dissent, contrary to the majority's approach, shopping

malls have different interests than municipalities.

“Private property owners have an interest in avoiding

interference with the commercial purposes of

property.” Pet App. 38-39 (Callahan, J., concurring in

part, dissenting in part); see also In re Hoffman, 67

Cal. 2d 845, 852 n.6, 64 Cal. Rptr. 97, 101 n.6 (1967)

(holding that “any appreciable interference with the

orderly carrying on of business may suffice” to

Support expression limits in a rail station). In his

concurring opinion in PruneYard, Justice Powell

included “substantial annoyance to customers” as a

factor that distinguishes legitimate private mall

interests from those of a public square. 447 U.S. at 96

(Powell, J., concurring).

Even if a property owner has an obligation under

state law to permit expressive activities on its

property that are contrary to the owner’s commercial

interests and those of its many tenants, the owner

should have the right to impose reasonable, content-

neutral rules on usage of the property, including

those that require visitors to not block or compete

with mall activities, stay within designated areas,

and limit their activities to off-peak times. If not, the

mall effectively has no right to regulate its property

to prevent inconvenience, annoyance, and perhaps

even relevant harm to mal! patrons, all of which

would jeopardize the purposes of the mall and its

tenants and their duties to all visitors.

C. Resolving the Constitutional Question

of Private Property Ownership in this

Case is Critical to Effective and Peace-

ful Labor-Management Relations Under

the NLRA.

The NLRA is designed to promote industrial

peace, NLRB v. American National Insurance Co.,

343 U.S. 395, 401 (1952), and the NLRB is chiefly

responsible for the development and application of

national labor policy, NLRB v. Curtin Matheson

Scientific, Inc., 494 U.S. 775, 786 (1990).

In the present context, “[olrganization rights are

granted to workers by the same authority, the

National Government, that preserves property rights.

Accommodation between the two must be obtained

with as little destruction of one as is consistent with

the maintenance of the other.” NLRB v. Babcock &

Wilcox Co., 351 U.S. 105, 112 (1956). Consequently,

“the task of the Board, subject to review by the

courts, is to resolve conflicts between § 7 rights and

private property nghts.” Hudgens, 424 U.S. at 521. In

fulfilling its proper role it is therefore critical that the

Board be equipped with a clear and consistent

standard so as to protect collective labor activity

within a constitutional system that protects private

property from physical invasions.

In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992),

the Court held that state law, and not federal labor

law, largely determines whether or not non-employee

unions can access company property. See id. at 535.

However, the Court’s deference to states in Lechmere

does not foreclose other federal limits on property

access (e.g., protections of time, place, and manner, or

distinctions based on the type of property at issue).

The NLRB is not immune from the requirements of

the Fifth Amendment.

The Ninth Circuit’s ruling fosters the undue

expansion of NLRB authority through the

constitutional violations described above. This case is

not merely a free speech case, but is also a labor

dispute ultimately governed by federal law. The non-

representative union’s activities were not limited to

peacefully passing out leaflets, but included active

picketing and a boycott that could have resulted in

illegal secondary activity, or worse. Clear direction

from the Supreme Court is needed to ensure that the

NLRB properly handles free speech matters that

potentially impair private property rights.

One need only consider the differences between

the ALJ’s opinion, the majority finding and partial

dissent at the NLRB, and the majority holding and

partial dissent at the court of appeals — not to

mention the call for supplemental briefing after

Fashion Valley — to conclude that guidance is needed.

Indeed, the NLRB itself showed a lack of comfort

with the current system by switching its position on

the time, place, and manner rules at the rehearing

stage after having defended them at every earlier

point of the litigation.

The constitutional stakes are too high to vest the

NLRB with unfettered discretion to decide the

important constitutional law issues raised herein.

II. CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE MOUNTING TENSION

BETWEEN THE STATE FREEDOMS OF

SPEECH RECOGNIZED IN PRUNEYARD

AND A MALL’S FIRST AMENDMENT

RIGHT TO REFRAIN FROM SPEAKING.

As Justice Powell asserted in his concurrence in

PruneYard, “state action that transforms privately

owned property into a forum for the expression of the

public’s views could raise serious First Amendment

questions.” 447 U.S. at 97 (Powell, J., cor curring).

Although Justice Powell did not find enough of a

conflict between the speech and property interests at

issue in PruneYard, he argued that requiring a

property owner to subsidize speech that is anti-

thetical to the owner’s interest could piace the owner

“in an intolerable position.” Jd. at 99. The Ninth

Circuit’s rejection of MPM’s rules (particularly Rules

1, 2, and 4) presents the very dilemma predicted by

Justice Powell and left open by PruneYard. In his

dissent in Fashion Valley, Justice Chin described

activity similar to the Union’s here as _ follows:

“Urging a boycott of [a mall’s] businesses contradicts

the very purpose of the shopping center’s existence.”

42 Cal. 4th at 870, 172 P3d at 755 (Chin, J.,

e'ssenting).

The Ninth Circuit’s ruling violates MPM’s rights

under the First Amendment by requiring it to

effectively sponsor messages on its own property that

are inimical to its commercial purpose. Likewise, the

Ninth Circuit’s “content-neutral” analysis of the

malls’ rules fails to recognize that a shopping mall

may have expressive interests of its own. One scholar

recently observed that, through the approach adopted

by the state supreme court in Fashion Valley and

thereby the Ninth Circuit in this case, “California

obliges the commercial landowner to serve as the host

for his own roasting.” Gregory C. Sisk, Returning to

the PruneYard: The Unconstitutionality of State-

Sanctioned Trespass in the Name of Speech, 32 Harv.

J.L. & Pub. Pol’y 389, 396 (2009).

MPM’s argument finds further support in Hurley

v. Irish-American Gay, Lesbian & Bisexual Group of

Boston, 515 U.S. 557 (1995), in which the Court

unanimously held that, under the First Amendment,

a state could not require private parade organizers to

include a third-party’s banner which contained a

message with which the organizers disagreed. The

Court observed that “when dissemination of a view

contrary to one’s own is forced upon a speaker inti-

mately connected with the communication advanced,

the speaker’s right to autonomy over the message is

compromised.” Jd. at 576.

The “forced speech” aspect of the First Amend-

ment is also reflected in Pacific Gas & Electric Co. v.

Public Utilities Commission of California, 475 U.S. 1

(1986), where the Court held that a state cannot

require inclusion of a message from a third party

with an energy company’s bill, and Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241 (1974), where

the Court struck down a right-of-reply statute that

the state attempted to impose on newspapers. In

Pacific Gas, the Court observed that such First

Amendment protection applies to corporations as well

as individuals: “For corporations as for individuals,

the choice to speak includes within it the choice of

what not to say.” 475 U.S. at 16.

In PruneYard, the Court held that the First

Amendment did not protect the mall there because (1)

it was open to the public and therefore it was unlikely

that the activity would be identified with the mall

owner, (2) the state did not require any particular

message, and (3) the mall had the ability to “disavow

any connection with the message.” 447 U.S. at 87. In

Pacific Gas, however, the Court emphasized that,

“(njotably absent from PruneYard was any concern

that access to [the mall] area might affect the

shopping center owner’s exercise of his own right to

speak: the owner did not even allege that he objected

to the content of the pamphlets; nor was the access

right content based.” 475 U.S. at 12; see also Hurley,

515 U.S. at 580 (citing Pacific Gas in distinguishing

PruneYard because, inter alia, the owner there did

not object to the speech at issue). The same cannot be

said for the activity in the present case, which

involves speech that directly attacks the very purpose

for which the malls exist.

As the Court observed in Wooley v. Maynard, 430

U.S. 705, 714 (1977), the right to free speech includes

the “right to refrain from speaking at all.” In

PruneYard, the Court held that this right to silence

was not violated in the context of a shopping mall

where it had the opportunity to respond. 447 U.S. at

88. However, by being forced to respond, the mall may

actually offend many of its tenants’ customers, there-

by potentially damaging its own commercial interests

as well as those of its tenants. Indeed, “private

landowners suffer a loss of their free speech rights

when forced to open their doors to controversial social

or political expression, including opinions that they —

or in the case of commercial enterprises, their

customers — may find offensive.” Sisk, supra, at 394.

Perhaps, as in PruneYard, a mall can waive such

rights if it does not object to the speech at issue. But

that does not mean that the rights do not exist.

As Justice Powell observed in his concurring

opinion in PruneYard, the rule in Wooley is implicated

when a property owner finds the ideas being

communicated on his property “objectionable enough

to compel a response.” 447 U.S. at 100 (Powell, J.,

concurring). Justice Powell cited a union being

“compelled to supply a forum to right-to-work advo-

cates” as but one example. /d. at 99. MPM would

submit that a boycott of its entire operation would

similarly demand a response. Furthermore, to the

extent that the Union’s activity targeted the practices

of one of its tenants, it is also understandable that

MPM would prefer not to get involved at all — the

right to neutrality is one of the chief reasons behind

the NLRA’s prohibition of secondary activity. See

NLRB v. Denver Bldg. & Const. Trades Council, 341

U.S. 675, 692 (1951) (describing the “shielding [of]

unoffending employers and others from pressures in

controversies not their own” as a main objective of 29

U.S.C. § 158(b)(4)).

The Union’s activity in this case was not isolated

or temporary. It was a concerted effort to boycott the

malls and their stores. MPM appreciates its state law

responsibility to allow orderly expression that is not

hostile to mall business, pursuant to PruneYard. It

sim:iarly recognizes the rights of mall employees to

organize and to engage in collective action, including

action on mall property, pursuant to Republic

Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Neither

situation lies here.

The Ninth Circuit’s opinion undercuts MPM’s

message to the public to come and shop in a safe,

secure, and welcoming environment. As _ such, it

violates the malls’ rights to free speech under the

First and Fourteenth Amendments.

CONCLUSION

For all of the foregoing reasons, MPM respect-

fully submits that this Petition for a Writ of Certi-

orari should be granted.

HORVITZ & LEVY LLP KATTEN MUCHIN ROSENMAN LLP

STEPHEN E. NORRIS THOMAS J. LEANSE

Counsel of Record STACEY MCKEE KNIGHT

JEREMY B. ROSEN 2029 Century Park East,

JAMES A. SONNE Suite 2600

15760 Ventura Blvd., Los Angeles, California 90067

18th Floor (310) 788-4400

Encino, California 91436

(818) 995-0800

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