California Supreme Court Upholds Moscone Act as Constitutional
Thursday's decision by the California Supreme Court in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 ("Ralphs") eliminates the uncertainty regarding how store owners should treat peaceful labor picketers on their private store property. Police departments responding to requests to remove such persons should take note that the Court overturned a Court of Appeal's 2010 decision, and found the Moscone Act and Labor Code section 1138.1 to be constitutional. Therefore, unless the picketers are disorderly, blocking access to or egress from the store, breaching the peace, or engaging in some other unlawful activity, if their speech is directed at a labor dispute involving that store, they should not be removed.
California's Moscone Act prohibits certain labor-related activities from being restrained, including, among other things, communicating the facts of a labor dispute and peacefully picketing involving a labor dispute. Similarly, Labor Code section 1138.1 prohibits a court from issuing an injunction in a labor dispute unless certain facts are found, including that unlawful acts have been threatened and that public officers are unable to adequately protect the complainant's property. Both statutes were modeled after parts of the federal Norris-LaGuardia Act.
As an initial matter, the Court upheld the Court of Appeal's determination that a supermarket's privately owned entrance area is not a public forum under First Amendment jurisprudence because these areas serve only the "utilitarian purposes" of allowing customers to enter and exit the store and providing space for store advertisement. Summarizing prior similar decisions, the Court explained that to qualify as a public forum, "an area within a shopping center must be designated 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."
Having decided that the area at issue was not a public forum, the Court affirmed the constitutionality of the Moscone Act and Labor Code section 1138.1, reversing the Court of Appeal. The appellate court had ruled that because these statutes favor labor union speech over other topic areas of speech, they violate the First and Fourteenth Amendments of the Constitution. Typically, speech regulations that restrict speech based on the content of its message are subject to strict scrutiny and are presumptively invalid.
The Court explained that U.S. Supreme Court decisions do not require absolute content neutrality in speech regulations. A regulation can be upheld if it is "justified" by legitimate concerns unrelated to the message content. The legislative history of both the Moscone Act and the Norris-LaGuardia Act show that the dual purposes of the Acts were to protect workers' rights to collective action, and to prevent court interference with the process of dispute resolution between employers and labor groups. These purposes, the Court said, demonstrate the required justification for singling out labor-related speech for special protection.
The Court also distinguished two well-established U.S. Supreme Court decisions that struck down laws regulating labor-related speech based on its content. These cases, Chicago v. Mosley and Carey v. Brown, the Court points out, address only speech in public fora and not, as in the case of the supermarket entrance, in non-public fora. In addition, unlike the laws at issue in those cases, the Moscone Act and section 1138.1 do not actually restrict any speech. (The state and federal constitutions prevent the abridging of the freedom of speech.)
In Waremart Foods v. NLRB, the D.C. Circuit had relied on the same Supreme Court decisions in concluding that California's Moscone Act violates the First Amendment by favoring labor speech over speech on other subjects. The California Supreme Court found that the D.C. Circuit court in Waremart had failed to recognize that the Moscone Act does not restrict labor speech based on the content of its message, and that the laws at issue in Mosley and Carey were being applied on non-public fora.
Since the Supreme Court took up this case on review in September 2010, the constitutionality of the Moscone Act and Labor Code section 1138.1 has been unclear. This decision puts to rest any dispute over the validity of those statutes and returns us to the status quo. In sum, peaceful union picketing on a private sidewalk outside a targeted retail store during a labor dispute may not be enjoined on the ground that it constitutes a trespass. This right arises under the statutory scheme of the Moscone Act and does not violate the federal Constitution's free speech or equal protection guarantees.