Best Animal Society v. Macerich Westside Pavilion Property LLC
122 Cal. Rptr. 3d 277
Cal. Ct. App.2011Background
- Westside Pavilion (a California mall) uses WP Rules to regulate noncommercial speech and qualified labor activity in common areas.
- WP Rules permit labor activity that complies with NLRA/state labor laws in designated areas and at certain times; limit nonlabor speech to designated areas and blackout days.
- PAPLA protested Barkworks near Nordstrom; protest location chosen outside Barkworks’ aural/visual range yet within designated area; blackout days applied.
- Best Friends sued Macerich for declaratory and injunctive relief, asserting WP Rules violate California Constitution article I, section 2 (free speech).
- Trial court denied a preliminary injunction; Best Friends appeals; issue is whether mall may discriminate by content and restrict speech despite free speech protections.
- Court reverses, holding Best Friends is entitled to a preliminary injunction preventing enforcement of WP Rules to suppress within-range protests absent tailoring to prevent substantial disruption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are WP Rules content-based restrictions on speech? | Best Friends argues WP Rules discriminate based on speech type. | Macerich asserts rules are labor-law driven and content-neutral. | WP Rules are content-based and fail strict scrutiny. |
| May a mall restrict speech to designated areas/days without violating the California Constitution? | Best Friends contends designation/days impermissibly curtail core speech. | Macerich argues designated areas/days are permissible to protect business operations. | Mall cannot impose blanket time/place restrictions without showing narrow tailoring. |
| Does Best Friends have likelihood of success on the merits for a preliminary injunction? | Best Friends will prove WP Rules violate Article I, §2. | Macerich contends rules are constitutional and necessary. | Yes; Best Friends demonstrated likelihood of success. |
| Is there a taking under the Fifth Amendment from PAPLA’s unrestricted access? | No taking; speech rights must be protected within a public forum. | Content-based restrictions could imply a taking. | No taking under the Taking Clause; speech rights can be regulated within constitutional scrutiny. |
Key Cases Cited
- Fashion Valley Mall, LLC v. National Labor Relations Bd., 42 Cal.4th 850 (Cal. 2007) (public forum status of malls; time/place/manner regulation; not content-based if narrowly tailored)
- Pruneyard Shopping Center v. Robins, 447 U.S. 785 (U.S. 1980) (California Constitution protection of speech in private shopping centers; broad language on public forum)
- H-CHH Associates v. Citizens for Representative Government, 193 Cal.App.3d 1193 (Cal. App. 1987) (invalidated unwritten, unlimited designation of areas for speech; needed objective criteria)
- UNITE and Others v. Superior Court, 56 Cal.App.4th 996 (Cal. App. 1997) (designated-area limit on expressive activity; controlling precedent questioned)
- Snatchko v. Westfield LLC, 187 Cal.App.4th 469 (Cal. App. 2010) (designated-area restrictions void where less restrictive alternatives exist; speech rights favored)
- Carpenters v. N.L.R.B., 540 F.3d 957 (9th Cir. 2008) (complete blanket bans on speech are overbroad; need narrowing alternatives)