It’s been a tough week for the First Amendment and labor unions, but perhaps not for puppies.
In this space, we attempt to look at the lighter side of the law, but there’s just nothing funny about a Marine making the ultimate sacrifice for his country or followers of Jesus thinking the Messiah wants them desecrating other people’s religious services. However, America’s courts never let us down when we need comic relief, and free speech cases are no exception
This week, California’s Second District Court of Appeal ruled on a particularly perplexing constitutional quandary. It’s a question not yet addressed in the current labor unrest in Wisconsin:
Does labor union speech enjoy greater constitutional protection than speech about puppies?
We’ll give you the court’s answer in Best Friends Animal Soc’y v. Macherich Westside Pavilion Prop., LLC, in a moment, but let’s start off by saying that—not unlike fallen heroes and violated funerals—there’s nothing funny about animal abuse or unfair labor practices. Nevertheless, what we’ve got here is an appellate court of law weighing the constitutional rights of terriers versus Teamsters.
Puppies and Picketers
The Best Friends Animal Society does good work. Not only does the Utah-based organization have adoption programs for dogs and cats, it has programs for parrots and pigs as well. In addition, it operates an animal sanctuary, and its Pup My Ride program transports dogs from overpopulated areas to places where they are more likely to find homes.
Best Friends also operates the Puppies Aren’t Products campaign with the stated goals of fighting against so-called puppy mills and irresponsible breeding.
One of the weapons in Puppies Aren’t Products’ arsenal is the staging of protests at shopping malls where the evil puppy mills’ alleged middle men—the pet shops—attempt to sell their canine cargo.
Although Puppies Aren’t Products bills its mission as a “fight” against the puppy mills, unlike more militant animal rights groups, Puppies Aren’t Products stresses the peaceful nature of its protests—a Gandhi for golden retrievers, if you will.
Peaceful or not, one shopping center didn’t want to give the puppy protesters free rein over its establishment. When Puppies Aren’t Products targeted the Barkworks Pups & Stuff store at Los Angeles’ Westside Pavilion, the owners of the mall swung into action.
Not unlike abortion protesters at a Democratic convention or anti-war protesters at a Republican convention, the puppy protesters were confined to undesirable areas—in this case, mall space far away from Barkworks. Incidentally, Barkworks denies its dogs come from puppy mills, stating it “takes great pride in having built a reputation of bringing healthy, happy puppies to loving families and homes.”
Look for the Union Label?
Westside Pavilion had rules about when people could protest in its common areas. The rules applied to so-called “noncommercial expressive activity,” and covered various forms of expression, such as political and religious speech, soliciting for signatures on petitions, and the dissemination of noncommercial leaflets and fliers.
The rules were what constitutional lawyers call “content neutral,” meaning the rules didn’t vary depending on what a speaker was saying. There was just one catch.
Labor unions got special treatment.
The mall had special rules for “qualified labor activity,” which was defined, in part, as “activity authorized by the National Labor Relations Act (NLRA) or applicable state labor laws.”
Non-labor expressive activity—such as the puppy protest—was limited to certain areas of the mall and was subject to certain “blackout days,” days when no protests were allowed, such as the busy business days of Valentine’s Day, Halloween, and the Christmas shopping season.
In contrast, labor expressive activity had no blackout dates, and the workers’ expression could take place near the targeted, allegedly union-busting establishment.
The litigating Lassie lawyers saw this distinction as the way to get the puppy protesters within pawsteps of the alleged villains at Barkworks.
Collies in Court
Best Friends sued Westside Pavilion’s owners in California state court, arguing the mall’s restrictions violated the free speech provisions of article I, section 2 of the California Constitution. Specifically, Best Friends argued, among other things, that it was unconstitutional for the mall to give labor union protesters preferential treatment over the Puppies Aren’t Products protesters.
Westside Pavilion countered that the restrictions passed constitutional muster and that the mall was forced to give labor union protesters special treatment in order to comply with state and federal labor law.
The mall won the first round when California Superior Court Judge Linda Lefkowitz ruled against the puppy protesters, holding that, under the 1997 California appellate decision, Union of Needletrades, Indus. & Textile. Emp. v. Superior Court, the shopping mall was within its rights to limit the activities of the puppy protesters and that the NLRA and state law required the mall to make special accommodations for labor protesters.
But, this dogfight wasn’t over.
Best Friends appealed and found a more fur-friendly tribunal in California’s Second District Court of Appeal. In a 3-0 decision on Mar. 2, the appellate court overturned Judge Lefkowitz, and ruled in favor of the puppy protesters.
The appellate court rejected the holding of the case on which Judge Lefkowitz relied and instead followed two other California appellate decisions, H-CHH Associates. v. Citizens for Representative Government and Snatchko v. Westfield LLC, in holding the mall could not restrict the puppy protesters in the manner it sought, and it rejected the mall’s preferential treatment of labor protesters.
The appellate court said the mall “suggests that the law compels it to discriminate. But federal and state laws do not require shopping malls to give labor speech more access to common areas than political and other types of free speech.”
Celebrating its victory and the apparent end of Puppies Aren’t Products’ banishment to the dark corners of the mall where one wouldn’t expect to find Jennifer Grey, Best Friends issued a statement entitled, Nobody Puts Baby in a Corner.
David Horrigan is a Washington, DC, attorney, editorial director at courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: [email protected]
