Appellate Court Finds Unconstitutional Statutes Favoring Speech Related To Labor Disputes And Holds That A Private Property Owner May Ban Picketing On Its Property

Given the California appellate court’s recent ruling in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 (January 19, 2010) 2010 DJDAR 11199, police departments may now receive increased requests to remove peaceful picketers in labor disputes from private property. While this case may provide authority for police officers to remove such picketers from private property, cities should seek individualized legal advice on this issue when altering current policies and procedures.

The California appellate court specifically found that a Ralphs-owned grocery store was a private forum not subject to heightened First Amendment scrutiny, concluding that labor union picketers were trespassing on private property when they violated Ralphs’s protest restrictions. In reaching this decision, the appellate court ruled that statutes that protect or favor labor union speech over other forms of speech violated the First and Fourteenth Amendments of the Constitution.

The Court started with a public forum evaluation under Pruneyard and later case law. Even though the Ralphs-owned store is part of a larger shopping center, the entrance and apron were not “designed and presented to the public as public meeting places,” nor did these areas “act as the functional equivalent of a traditional public forum.” The Court found that the setting of the store within a shopping center with a number of other retailers and restaurants, some of which provide outdoor seating, was similar to other appellate court decisions holding that the entrance areas and aprons to stand-alone stores in shopping centers are private fora. Significantly, the Court also explained that as a private forum, Ralphs could limit or prohibit certain speech even if they selectively allowed other groups to collect signatures or donations for other causes.

The trial court’s refusal to grant injunctive relief was grounded in the Moscone Act (Code of Civil Procedure § 527.3) and Labor Code § 1138.1, which limits a court’s ability to grant injunctive relief in cases involving labor disputes. Sacramento police officers were unwilling to remove the peaceful picketers from Ralph’s private property presumably because of the Moscone Act and Labor Code § 1138.1. Relying on Supreme Court precedent that found preferential treatment of speech regarding labor disputes to be unconstitutional content-based discrimination under the First and Fourteenth Amendments, the appellate court declared both the Moscone Act and Labor Code § 1138.1 unconstitutional.

This case highlights the fact specific inquiry required to determine whether retailers within a private shopping center qualify as a public forum. The case notably explains that if the forum is private, the private entity may selectively enforce its no solicitation policies. Additionally, and quite significantly, the case holds that parties seeking injunctive or other equitable relief from labor union demonstrations will no longer be required to meet the heightened requirements of the Moscone Act and Labor Code § 1138.1. The impact of this ruling is likely to be that police departments will receive more frequent calls to remove peaceful picketers in labor disputes from private property. Given, however, the many nuances of First Amendment jurisprudence and that this decision is an appellate court decision (subject to being disagreed with by a different appellate courts on the same issue in a different case or subject to being overruled by the California Supreme Court), police departments would be wise to seek specific legal advice on this issue before changing current policies regarding the removal of peaceful picketers in labor disputes from private property.

Meyers Nave closely monitors developments in the First Amendment arena and will continue to provide pertinent updates. For questions regarding the impact of the Ralphs Grocery Company decision, contact Deborah Fox or Meg Rosequist at 800.464.3559.