FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED BROTHERHOOD OF 

CARPENTERS AND JOINERS OF

AMERICA LOCAL 848; UNITED

BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA; AFL-CIO,

and CARPENTERS LOCAL 505,

UNITED BROTHERHOOD OF

No. 05-75295 CARPENTERS & JOINERS OF AMERICA,

AFL-CIO, NLRB Nos.

Petitioners,  20-CA-29636-1

U 20-CA-29918-1 NITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF

AMERICA.

Intervenor,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent. 

11575
NATIONAL LABOR RELATIONS 

BOARD; MACERICH MANAGEMENT,

Petitioners,

UNITED BROTHERHOOD OF Nos. 05-76217

CARPENTERS AND JOINERS OF 05-77116

AMERICA. NLRB Nos.

Intervenor,  20-CA-29636-1

v. 30-CA-29918

MACERICH MANAGEMENT COMPANY; OPINION

MACERICH PROPERTY MANAGEMENT

COMPANY,

Respondents. 

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted

October 15, 2007—San Francisco, California

Filed August 25, 2008

Before: Jane R. Roth,* Sidney R. Thomas, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Thomas;

Partial Concurrence and Partial Dissent by Judge Callahan

*The Honorable Jane R. Roth, Senior United States Circuit Judge for

the Third Circuit, sitting by designation. 

11576 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
COUNSEL

Caren P. Sencer and David Rosenfeld, Weinberg Roger &

Rosenfeld, Alameda, California, for petitioners United Brotherhood of Carpenters and Joiners of America, Local 505,

United Brotherhood of Carpenters and Joiners of America,

Local 848, and United Brotherhood of Carpenters and Joiners

of America. 

Stacey McKee Knight, Katten Muchin Rosenman, LLP, Los

Angeles, California, for respondents Macerich Management

Company and Macerich Property Management Company. 

Linda Dreeben, David Habenstreit, Joseph P. Norelli, and

Jason Walta, Washington, D.C., for respondent the National

Labor Relations Board. 

Jo Anne Bernhard, Sacramento, California, for amicus curiae

International Council of Shopping Centers and California

Business Properties Association. 

11580 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
Donald C. Carroll, Carroll & Scully, Inc., San Francisco, California, for amicus curiae California Labor Federation. 

OPINION

THOMAS, Circuit Judge: 

This petition for review presents the question of whether

six restrictions on expressive activity promulgated and

enforced by two California shopping malls infringe on the

free speech rights guaranteed by the California State Constitution and therefore interfere with protected union activity in

violation of the National Labor Relations Act (“NLRA”)

when applied to union picketing and handbilling actions. We

hold that the six rules impermissibly infringe free speech

rights and unlawfully interfere with protected union activity.

I

Macerich Management Company and Macerich Property

Management Company (collectively “Macerich”) operate as

the managing agents for Arden Fair Mall and Capitola Mall

(“the Malls”), respectively. The Malls are enclosed, privatelyowned shopping centers located in Sacramento, California,

and Santa Monica, California. Macerich promulgated a list of

“Rules for Public Use of Common Areas” that regulate

expressive activity in each mall. Among these rules are the six

at issue here: 

Rule 1 (“identification ban”): a ban on activities that

identify by name the mall owner, manager, or tenants; 

Rule 2 (“commercial purpose rule”): a ban on signage and written materials that interfere with the

“commercial purpose” of the mall; 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11581
Rule 3 (“signage ban”): a ban on the carrying or

wearing of signs; 

Rule 4 (“application requirement”): an application

process that requires the pre-submission of written

materials; 

Rule 5 (“designated areas rule”): the exclusion of

exterior areas, including mall sidewalks, from designated areas where expressive activities may occur;

and 

Rule 6 (“peak traffic rule”): the prohibition of

expressive activities during “peak traffic days.”

1

According to Macerich, the general purpose of these rules is

to safeguard the commercial activity of the malls, provide

shoppers with a pleasant shopping experience, and protect

shoppers’ safety. 

On December 16, 1999, representatives of United Brotherhood of Carpenters and Joiners of America Local 586 (“Local

586”) distributed handbills at the interior and exterior

entrances of the Sears store at Arden Fair Mall, to protest the

use of a nonunion contractor to build a Sears store in Roseville, California. Local 586 did not file an application with the

mall beforehand, nor did it submit the handbills for prescreening, because a union representative had been told by an

Arden Fair employee that an application was unnecessary.

Mall security guards informed the union representatives that

they were trespassing and would be arrested if they remained

on the premises. When the union representatives refused to

leave, mall officials called the police and one representative

1The challenged regulations are a small portion of the complete “Rules

for Public Use of Common Areas,” and are not numbered consecutively

in those documents. We adopt the numbering used in the National Labor

Relations Board (“NLRB” or “the Board”) opinion. 

11582 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
was arrested. Later, a Local 586 representative filled out an

application, which was denied as untimely, incomplete, and

ambiguous. On December 21 and 22, 1999, Local 586 representatives went to Arden Fair Mall wearing shirts that said

“Do Not Patronize Arden Fair Mall — Unfair to Carpenters.”

On March 7, 2000, United Brotherhood of Carpenters and

Joiners of America Local 505 representatives distributed

handbills and picketed at Capitola Mall to protest the use of

a nonunion contractor to build a new store in the mall, and to

publicize an area standards dispute. The picketers left after the

police arrived and warned them that they could be subject to

citizen’s arrest. Two weeks later, Local 505 representatives

returned to Capitola Mall and again picketed the construction

site. When they refused to leave, they were placed under citizen’s arrest. On May 3, 2000, Local 505 representatives again

picketed at Capitola Mall, this time protesting the use of

another nonunion contractor. Four union representatives were

arrested. In no instance did Local 505 complete an application

beforehand or pre-submit written materials to the mall. 

Locals 586 and 505 (“the Unions”) each filed unfair labor

practices charges against Macerich, alleging that Macerich

had violated section 8(a)(1) of the NLRA, 29 U.S.C.

§ 158(a)(1), by unlawfully restricting the Unions’ expressive

activities, unlawfully threatening union picketers with arrest,

and having union picketers unlawfully arrested. The charges

were consolidated by the NLRB General Counsel into a complaint alleging that Macerich had violated section 8(a)(1) by

maintaining six rules that unlawfully interfere with expressive

activity, and by ejecting union representatives from mall

property for engaging in protected activity. 

A hearing was conducted before Administrative Law Judge

Jay R. Pollack, who concluded that Macerich had engaged in

unfair labor practices by promulgating, maintaining, and

enforcing each of the challenged rules, and by ejecting union

representatives from mall property for engaging in protected

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11583
activity. Macerich filed exceptions to ALJ Pollack’s decision,

and the Board’s General Counsel filed cross-exceptions. 

In 2005, the NRLB issued a decision affirming ALJ Pollack’s decision in part. Specifically, the Board upheld ALJ

Pollack’s findings that the identification ban and the commercial purpose rule (Rules 1 and 2) were unlawful content-based

restrictions under California law. The Board also upheld ALJ

Pollack’s finding that the application requirement (Rule 4)

was unlawful when applied to ensure compliance with Rules

1 and 2. The Board further found, contrary to ALJ Pollack’s

decision, that the signage ban, the designated areas rule, and

the peak traffic rule (Rules 3, 5, and 6) were reasonable time,

place, or manner restrictions under California law. The

Unions filed a petition for review (Case No. 05-75295), arguing that Rules 3, 5, and 6 are unlawful; Macerich filed a petition for review (Case No. 05-77116), arguing that Rules 1, 2,

and 4 are permissible; and the NRLB filed a petition for

enforcement of its decision (Case No. 05-76217). The Unions

then filed a motion to intervene in Case No. 05-77116. By

orders of December 9, 2005, and January 24, 2006, we consolidated the petitions for review with the Board’s application

for enforcement, and granted the Unions’ motion to intervene.

We now grant the Unions’ petition, grant in part and deny in

part the Board’s petition, and deny Macerich’s petition. 

We review the Board’s decision to determine whether the

Board’s findings of fact are supported by substantial evidence

in the record as a whole, and whether the Board correctly

applied the law. Healthcare Employees Union v. NLRB, 463

F.3d 909, 918 (9th Cir. 2006). 

II

[1] Section 7 of the NLRA guarantees employees the right

to form labor unions, bargain collectively, and “engage in

other concerted activities for the purpose of collective bargaining or other mutual aid.” NLRA § 7, 29 U.S.C. § 157.

11584 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
Section 8(a)(1) of the NLRA makes it an “unfair labor practice” for an employer “to interfere with, restrain, or coerce

employees” in the exercise of their section 7 rights. NLRA

§ 8(a)(1), 29 U.S.C. § 158(a)(1). While the NLRA by its

terms confers rights only on employees, the United States

Supreme Court has determined that it also restricts an

employer’s right to exclude nonemployee union organizers

from the employer’s property. Lechmere, Inc. v. NLRB, 502

U.S. 527, 535 (1992). 

[2] Under Lechmere and subsequent cases, the rights of

nonemployee union representatives to access an employer’s

private property are based in state law. Thunder Basin Coal

Co. v. Reich, 510 U.S. 200, 217 n.21 (1994). Where state

common law grants an employer the right to exclude nonemployee union organizers from its property, the NLRA guarantees access only if the union can show that employees are

otherwise inaccessible to union organizers, and that the

employees’ section 7 rights outweigh the employer’s property

rights. Lechmere, 502 U.S. at 538. Where state law grants

nonemployee union organizers the right to access the employer’s property, a violation of these state rights will also be a

violation of the NLRA. Glendale Assocs., Ltd. v. NLRB, 347

F.3d 1145, 1153 (9th Cir. 2003). Thus, the question of

whether Macerich engaged in unfair labor practices by

excluding the Unions’ representatives turns on whether California state law grants union representatives the right to

access private mall property. 

In analyzing questions of state law, we are bound by the

decisions of the state’s highest court. Glendale, 347 F.3d at

1154. The California Supreme Court has determined that article I, section 2 of the California Constitution protects expressive activities — including petitioning and picketing —

conducted in privately-owned shopping centers. Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742, 745 (Cal. 2007) (citing

Robbins v. Pruneyard Shopping Center, 592 P.2d 341 (Cal.

1979)). The California Supreme Court has repeatedly held

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11585
that “private property can constitute a public forum for free

speech if it is open to the public in a manner similar to that

of public streets and sidewalks,” and that a shopping center to

which the public is invited provides “ ‘an essential and invaluable forum’ ” for exercising free speech rights. Id. at 745, 746

(quoting Pruneyard, 592 P.2d at 341). For this reason,

privately-owned shopping centers in California are required to

respect individual free speech rights on their premises to the

same extent that government entities are bound to observe

state and federal free speech rights. Glendale, 347 F.3d at

1154. The California Supreme Court has recognized that this

protection of expressive activities on private property is

“ ‘broader’ and ‘greater’ ” than that offered by the First

Amendment to the United States Constitution. Fashion Valley, 172 P.3d at 749 (citing Gerawan Farming, Inc. v. Lyons,

12 P.3d 720, 735 (Cal. 2000)). 

The free speech protection enshrined in the California Constitution is not absolute. Shopping malls may impose reasonable restrictions on the time, place, and manner of expressive

activities. Id. at 750 (citing Diamond v. Bland, 477 P.2d 733

(Cal. 1970)). The level of scrutiny with which we review a

restriction on free speech activity depends on whether the

restriction is a content-neutral regulation of the time, place, or

manner of speech, or a content-based restriction. Id. at 751. A

content-neutral restriction is subjected to intermediate scrutiny to determine whether it (1) is narrowly tailored, (2)

serves a significant government interest, and (3) leaves open

ample alternative avenues of communication. Id. A contentbased restriction is analyzed under strict scrutiny to determine

whether the regulation is necessary to serve a compelling

interest and narrowly drawn to achieve that end. Id. at 754.

Applying these tests, we conclude that Rules 1 (identification

ban) and 2 (commercial purpose rule) are impermissible

content-based restrictions, and Rule 4 (application requirement) is impermissibly content-based when applied to enforce

Rules 1 and 2. We conclude that Rules 3 (signage ban), 5

(designated areas rule), and 6 (peak traffic rule) are content11586 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
neutral, but fail the intermediate scrutiny test for reasonable

time, place, or manner restrictions. 

A

[3] We begin with the Unions’ challenge to Rule 1, the

identification ban. The Board held that the rule banning activities identifying by name the mall owner, manager, or tenants

was identical to the rule we held to be unlawful in Glendale.

2

2Macerich contends that Glendale represents a misapplication of California law, and that the Board erred in relying on it. Even if we were not

bound to follow Glendale, see General Const. Co. v. Castro, 401 F.3d

963, 975 (9th Cir. 2005) (“[w]e are bound by decisions of prior panels

unless an en banc decision, Supreme Court decision or subsequent legislation undermines those decisions”) (quoting Benny v. U.S. Parole Comm’n,

295 F.3d 977, 983 (9th Cir. 2002)), we would reject this argument. 

First, Macerich argues that Glendale relied on NLRB v. Calkins, 187

F.3d 1080 (9th Cir. 1999), and that Calkins has been discredited. While

it is true that the cases identifying First Amendment free speech protections on private property relied on by Calkins have been overruled at the

federal level, California cases like Pruneyard have incorporated their principles into California law. See Fashion Valley, 172 P.3d at 748-49; Pruneyard, 592 P.2d at 346. In addition, Calkins addressed free speech rights on

the private property of stand-alone stores, which have not taken on the

functional equivalence of a traditional public forum that was found to be

the compelling reason for extending free speech rights in shopping malls

in Pruneyard. See 592 P.2d at 347 n.5. Glendale, which discusses the free

speech protections in shopping malls under California law, is good law

despite the weaknesses in Calkins. 

Macerich next argues that recent decisions of the California Court of

Appeal limit Pruneyard’s application of free speech rights on private

property. Specifically, Macerich points to H-CHH Associates v. Citizens

for Representative Gov’t, in which the California Court of Appeal upheld

a shopping center’s proscription on the solicitation of funds from patrons

and stated that solicitation need not be permitted “when it is basically

incompatible with the normal character and function of the facility.” 193

Cal.App.3d 1193, 1221 (Ct. App. 1987). Fashion Valley, which reaffirmed

Pruneyard, silences this argument. 172 P.3d at 748-49. The Fashion Valley court explicitly rejected H-CHH to the extent that it suggested that

speech may be prohibited if it competes with a shopping center’s merchants. Id. at 753 n.12. 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11587
In Glendale, we began by determining whether the rule was

content-based or content-neutral. 347 F.3d at 1155. Speechregulating rules are considered content-neutral when the rules

are not related to the subject or topic of the speech. Id. (citing

Ward v. Rock Against Racism, 491 U.S. 781 (1989)).3 Rules

are generally considered content-based when the regulating

party must examine the speech to determine if it is acceptable.

Id. (citing Desert Outdoor Adver. v. City of Moreno Valley,

103 F.3d 814, 820 (9th Cir. 1996)). In Glendale, we determined that a rule prohibiting literature that included the name

of a mall owner, manager, or tenant was content-based

because the mall would have to review the literature to determine if it included an owner’s, manager’s, or tenant’s name

before approving the literature for distribution. Id. at 1156.4

The same analysis applies here: the identification ban is

content-based because Macerich would have to review the

content of speech and literature to determine whether the

speech violated the ban by naming a mall tenant, owner, or

manager. 

[4] Because the identification ban is content-based, we next

examine it to determine whether it survives strict scrutiny. Id.

“Content-based regulations receive strict scrutiny because

‘content-based restrictions are especially likely to be improper

attempts to value some forms of speech over others, or are

particularly susceptible to being used . . . to distort public

debate.’ ” Id. at 1155 (quoting City of Ladue v. Gilleo, 512

U.S. 43, 60 (1994) (O’Connor, J., concurring)).5 Content3California state courts borrow from federal First Amendment jurisprudence to analyze whether a rule is content-based or content-neutral. Glendale, 347 F.3d at 1155. 

4

In Glendale, we also found the rule to be content-based because it

allowed exceptions for commercial literature naming a mall owner, manager, or tenant, and for literature from groups and persons who were in a

primary labor dispute with a mall tenant. These additional details enhance

the content-based nature of the regulation, but were not necessary to a

finding that the regulation was content-based. 

5California state courts also draw from First Amendment jurisprudence

to determine whether a content-based rule survives strict scrutiny under

the California Constitution. Glendale, 347 F.3d at 1156. 

11588 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
based restrictions are presumptively unconstitutional; a

content-based restriction will pass constitutional muster “only

if it employs the least restrictive means to further a compelling interest.” Id. at 1156 (citing R.A.V. v. City of St. Paul, 505

U.S. 377, 382 (1992) and Frisby v. Schultz, 487 U.S. 474, 483

(1988)). The burden is on the regulating authority to prove

that the restriction is justified without reference to the content

of the speech. Id. (citing Rock Against Racism, 491 U.S. at

791). Courts have consistently struck down restrictions based

in hostility or favoritism towards particular messages. Id. at

1157-58. 

In Glendale, the mall argued that its ban on the naming of

an owner, manager, or tenant served its interest in ensuring

that normal business operations were not disrupted. Id. We

held that this stated interest was belied by the fact that the

mall made an exception for speech promoting primary boycotts of mall tenants, speech that was likely to be the most

disruptive of normal business operations. Id. at 1157. We also

held that the rule was untenable because it was motivated by

hostility towards messages that might adversely affect business. Id. at 1157-58. We stated, “[i]n restricting such critical

speech about their tenants, owners, or managers, [the] rule

contravenes the purpose of California free speech protections:

the preservation of discussion of issues even when they are

contrary to a regulating party’s belief or interest. . . . The California Constitution does not permit censorship of contrary

ideas.” Id. at 1158. 

[5] Macerich asserts a similar interest here. Susan Valentine, Senior Vice President of Marketing for Macerich, testified that Macerich adopted the identification ban to protect

the “good name” of the mall and its tenants. This stated justification exposes Macerich’s hostility towards messages critical of the mall or its tenants. Because free speech protections

were designed to protect critical speech, we cannot find the

suppression of critical speech to be a compelling interest. We

find that “[t]he Mall’s purpose to maximize the profits of its

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11589
merchants is not compelling compared to the Union’s right to

free expression.” Fashion Valley, 172 P.3d at 754. Macerich

has provided no justification for the identification rule that

does not reference the content of the speech. We therefore

find that Rule 1 (the identification ban) does not survive strict

scrutiny.

B

[6] The same analysis applies to Rule 2, the commercial

purpose rule. We begin by analyzing whether the rule is

content-based or content-neutral. Rule 2 prohibits signage and

written materials that interfere with the “commercial purpose”

of the mall. As with the identification rule, this rule requires

that the regulating authority examine the content of the written material to determine whether it complies with the rule.

Like the identification rule, the commercial purpose rule is

content-based. 

Next, we address whether Rule 2 survives strict scrutiny.

Valentine and Carmen Lytle, Arden Fair’s General Manager,

explained that the commercial purpose rule was intended to

eliminate written materials that would financially damage the

mall or its tenants. The Board concluded that the purpose of

the rule was to “place restrictions on the content of the message so as to limit any negative publicity and not hurt sales.”

Rule 2 is entirely motivated by hostility towards messages

critical of the mall or its tenants. Macerich offers no contentneutral justification for the rule. Therefore, the commercial

purpose rule cannot survive a strict scrutiny analysis. 

Our conclusion is supported by the California Supreme

Court’s recent decision in Fashion Valley. In Fashion Valley,

the California Supreme Court analyzed a mall rule that prohibited speech “[u]rging, or encouraging in any manner, customers not to purchase the merchandise or services offered by

any one or more of the stores or merchants in the shopping

center.” 172 P.3d at 744. The Court determined that the rule

11590 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
was content-based because it distinguished favored speech

from disfavored speech based on the ideas expressed: speech

urging a boycott was prohibited, but other speech was not. Id.

at 751-52. 

Fashion Valley distinguished the boycott rule from rules

prohibiting face-to-face solicitation of funds, which have been

held to be content-neutral. The Court explained that solicitation bans are concerned with the manner of speech, and are

directed at “the conduct and intrusiveness that face-to-face

solicitation for immediate donation or exchange of funds

inherently promotes.” Id. at 752-53. Fashion Valley expressly

rejected the mall’s argument that the ban on speech advocating a boycott could be similarly justified as a restriction on

the manner of speech. Id. at 750, 753 (rejecting the mall’s

argument that the boycott ban was “a ‘reasonable regulation’

designed to assure that free expression activities ‘do not interfere with normal business operations’ . . .”). Unlike solicitation, the Court noted, peacefully urging a boycott does not by

its nature cause congestion or promote fraud or duress. Id. at

753. 

As the California Supreme Court noted, shopping centers

are free to “prohibit conduct ‘calculated to disrupt normal

business operations’ or that would result in ‘obstruction of or

undue interference with normal business operations.’ ” Id.

(quoting Diamond, 477 P.2d at 733) (emphasis ours). However, “speech that does no more than attempt to peacefully

persuade customers not to patronize a business cannot be

banned on the ground that it interferes with normal business

operations.” Id. at 751 n.8. Fashion Valley explained that the

“distinction between urging customers to boycott a business

and physically impeding access to that business” is crucial. Id.

The California Supreme Court also noted that citizens have a

“strengthened interest, not a diminished interest, in speech

that presents a grievance against a particular business in a privately owned shopping center, including speech that advocates a boycott.” Id. at 750. 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11591
[7] The commercial purpose rule at issue here, which was

put in place to limit speakers’ abilities to persuade customers

not to patronize certain businesses, is an attempt to restrict the

speakers’ ability to persuade. The rule does not prohibit conduct that would interfere with normal business operations, but

instead infringes upon the strong free speech interest in peacefully presenting a grievance to an offending business. Because

limiting critical speech is an impermissible regulatory goal,

Rule 2 cannot survive a strict scrutiny analysis. 

C

[8] The NLRB correctly held that Rule 4 (application

requirement), when used to enforce the unlawful Rules 1

(identification ban) and 2 (commercial purpose rule) is likewise unlawful. The Board reasoned that because the application process is used to screen written material for compliance

with the rule banning the identification of a mall owner, manager or tenant, and with the rule banning signage that interferes with the commercial purpose of the Malls, the rule is

content-based. We agree, and reiterate that the examination of

the content of a speaker’s message is the hallmark of a

content-based rule. The application requirement becomes

unlawful when used as a tool to ferret out objectionable content. 

Our conclusion is consistent with that of the California

Court of Appeal in H-CHH, in which the Court struck down

as constitutionally defective an application process used to

screen for expressive activity that would adversely affect the

shopping center environment, atmosphere, or image. 193

Cal.App.3d at 1211.6

6Macerich argues that our analysis should be guided instead by Union

of Needletrades, Industrial & Textile Employees, AFL-CIO v. Superior

Court, 56 Cal.App.4th 996 (Ct. App. 1997) (“UNITE”), in which the California Court of Appeal upheld an application process for expressive activity in a shopping mall. UNITE gives no guidance because the Court did

not address whether the underlying restrictions on naming tenants and on

interfering with the commercial purposes of the mall were valid, as it

found that those issues had not been properly preserved for review. Id. at

1020-21. 

11592 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
Macerich argues that even if Rules 1 and 2 are unlawful,

the Board’s order is overbroad because it invalidated the

application process entirely, even when used to further legitimate goals like proper scheduling of events. This argument

misstates the Board’s order. The order enjoins Macerich from

“[m]aintaining and enforcing a rule that requires the presubmission of written materials for the purpose of enforcing” the

unlawful identification and commercial purpose rules (emphasis ours). We construe this statement to mean that the application process may remain in use insofar as it is used to promote

legitimate time, place, and manner restrictions on expressive

activities. So construed, there is nothing overbroad about the

holding.

D

[9] We turn to the Unions’ challenge to Rule 3, the ban on

carrying or wearing signs. The NRLB concluded that Rule 3

was a reasonable restriction on the time, place, or manner of

speech. To be enforceable, restrictions on time, place, or manner must (1) be justified without reference to the content of

the regulated speech, (2) be narrowly tailored to serve a significant interest, and (3) leave open ample alternative channels for the communication of the information. Berger v. City

of Seattle, 512 F.3d 582, 589 (9th Cir. 2008) (citing Clark v.

Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).7

Failure to satisfy any single prong of this test invalidates a

regulation. Kuba, 387 F.3d at 858 (quoting Grossman v. City

of Portland, 33 F.3d 1200, 1205 (9th Cir. 1994)). 

The Unions concede that Rule 3 is content-neutral, but

argue that it is not narrowly tailored to promote a significant

mall interest and does not leave open ample alternatives for

communication. To prove that a regulation is narrowly tai7California Courts apply federal precedent to determine whether a rule

is a reasonable time, place, or manner restriction. See Kuba v. 1-A Agric.

Ass’n, 387 F.3d 850 (9th Cir. 2004). 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11593
lored to serve a significant interest, the regulating authority

must identify the interests served by the restriction and provide evidence that the proposed communicative activity

endangers those interests. Id. at 858-59. Speculation as to

what might happen if the proposed activity was allowed is

insufficient. Id. at 859-60 (finding lack of evidence to support

ban on demonstrating where city failed to provide evidence

beyond a “first hand” account that “there is simply no space

in the fire lanes or the concrete apron in which [demonstrators] would be safe . . .”). Studies, anecdotes pertaining to different locales, history, consensus, and “simple common

sense” may serve as evidence that the proposed activity will

endanger significant interests. G.K. Ltd. Travel v. City of Lake

Oswego, 436 F.3d 1064, 1073 (9th Cir. 2006). In the case of

safety restrictions, for example, the regulating body need not

wait until someone is injured before promulgating regulations.

Edwards v. City of Coeur d’Alene, 262 F.3d 856, 865 n.16

(9th Cir. 2001). 

Macerich argues that Rule 3 (signage ban) is justified by

convenience, safety, and aesthetic concerns. Valentine testified that the signage ban is necessary to prevent people from

having to walk out of their way to avoid expressive activities,

keep signage looking professional, and protect individuals

from injuries caused by signs or the sticks they are attached

to. We generally consider safety and convenience to be valid

regulatory objectives. Berger, 512 F.3d at 592. In at least

some circumstances, we have recognized aesthetics to be a

significant interest. See Foti v. City of Menlo Park, 146 F.3d

629, 637 (noting that while cities do have a substantial interest in protecting the aesthetic appearance of their communities

by avoiding visual clutter, these interests may not be compelling.). Common sense supports the idea that picketers’ signs

may inconvenience retailers and customers by blocking sight

lines in shopping centers, although the record does not include

evidence to reinforce this conclusion. Similarly, common

sense suggests that rigid signs with sharp corners, especially

11594 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
if attached to sharp or heavy sticks, could pose a threat to

safety. 

[10] While there may be sufficient common sense support

for Macerich’s assertion that the proposed communicative

activity endangers significant interests, the signage ban is not

narrowly tailored to serve those interests. For a regulation to

be narrowly tailored, the stated interest must be served “less

effectively absent the regulation,” and the regulation may not

“burden substantially more speech than is necessary to further

the [regulating authority’s] legitimate interests.” Kuba, 387

F.3d at 861. The regulation need not advance the regulating

authority’s interests in the least restrictive or least intrusive

way, G.K., 436 F.3d at 1074, but the existence of numerous

obvious and less-burdensome alternatives is relevant to the

regulation’s “fit,” Edwards, 262 F.3d at 865 (quoting Cincinatti v. Discovery Network, Inc., 507 U.S. 410, 418 n.13

(1993)). 

[11] The complete ban on wearing or carrying signs eliminates any safety or aesthetic concern associated with signs or

sign poles. For that reason, it may be said that Macerich’s

interests would be served less effectively absent the ban.8

However, Rule 3 burdens substantially more speech than is

necessary to further Macerich’s legitimate interests. Rule 3

doesn’t just ban speech that is communicated in dangerous or

intrusive ways; it bans virtually all speech communicated

visually through images and text.9 Moreover, numerous obvi8The dissent would have us stop here, before analyzing whether the regulation burdens substantially more speech than is necessary to further

Macerich’s legitimate goals or determining whether numerous obvious

and less-burdensome alternatives exist. The volume of speech burdened

and the availability of numerous alternatives are appropriate considerations in a complete and thorough narrow tailoring analysis. We are not,

as the dissent suggests, insisting that the challenged regulation be the

“least restrictive means” for achieving Macerich’s goals. We agree that

such an analysis would be inappropriate where, as here, intermediate scrutiny is the appropriate standard. See, e.g., Ward, 491 U.S. at 797. 

9There are exceptions, of course. The Unions could have distributed

handbills or attached two signs to a table within an area designated for

expressive conduct. 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11595
ous and less burdensome alternatives exist. The same safety

considerations could be served by eliminating signs with particularly dangerous characteristics. Macerich could, for example, insist that signs be made from soft materials, have

rounded corners, or be attached to cardboard poles. Aesthetic

and convenience concerns could be promoted by restricting

the size of signs or allowing demonstrators to wear signs in

the form of lettering on t-shirts. Because the complete ban on

carrying or wearing signs is substantially overbroad, it cannot

satisfy the requirement that the restriction be “narrowly tailored.” 

Even if we held the signage ban to be narrowly tailored to

serve a significant interest, it would fail intermediate scrutiny

because it fails to leave open ample alternatives for communication.10 See Kuba, 387 F.3d at 858. A regulation that effectively

prevents a speaker from reaching his intended audience fails

to leave open ample alternatives. Edwards, 262 F.3d at 866.

Where “there is no other effective and economical way for an

individual to communicate his or her message,” alternative

methods of communication are insufficient. Id. We will not

invalidate a regulation merely because it restricts the speaker’s preferred method of communication. Id.; see also Savage

v. Trammel Crow Co., 223 Cal.App.3d 1562, 1575 (Ct. App.

1990) (“The adequacy of alternative channels is not measured

by the fondest hopes of those who wish to disseminate

ideas.”). However, a regulation that forecloses an entire

medium of public expression across the landscape of a particular community or setting fails to leave open ample alterna10The dissent essentially asks us to ignore this prong of the analysis,

stating that “the Supreme Court has repeatedly admonished lower courts

not to use the ‘ample alternative channels’ requirement as a means of

overturning regulations.” The cases cited by the dissent, however, stand

for the proposition that this Court may not overturn a valid time, place, or

manner restriction on the grounds that we disagree with the regulating

authority’s methods. See, e.g., Ward, 491 U.S. at 799. These cases do not

suggest that the “ample alternative means” requirement is no longer a

valid prong of the time, place, and manner analysis. 

11596 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
tives. G.K., 436 F.3d at 1074. As we noted in Foti, free

speech protections extend to the “right to choose a particular

means or avenue of speech . . . in lieu of other avenues.” 146

F.3d at 641. 

We are particularly wary of any regulation that completely

forecloses “a venerable means of communication that is both

unique and important.” Gilleo, 512 U.S. at 55. Picketing is

one such venerable medium and has unique advantages over

other forms of communication, including immediate recognition by passers-by. Foti, 146 F.3d at 641. In Edwards, we

invalidated an ordinance banning the attachment of wooden or

plastic supports to signs carried during parades and assemblies because “the classic image of a picketer — dating back

to the early days of labor protests — is of an individual holding aloft a sign-bearing standard.” 262 F.3d at 865. 

Moreover, when picketing is the chosen means of communication, the location of the protest is particularly important.

As the California Supreme Court reiterated in Fashion Valley:

“When the activity to be protected is the right to picket an

employer, the location of the employer’s business is often the

only effective locus; alternative locations do not call attention

to the problem which is the subject of the picketing and may

fail to apply the desired economic pressure.” 172 P.3d at 748

(citing Diamond, 447 P.2d at 733). 

[12] Here, the NLRB found that the signage ban left open

ample alternatives for communication because the Unions

were still able to advertise their dispute in the media and

picket and handbill on public property. The Board now argues

that the mall regulations allow the Unions to attach two signs

to a table, thus granting them the advantage of immediate recognition by passers-by. We conclude that these alternatives

are legally inadequate. While attaching two signs to a table

might allow the Unions to communicate with passers-by, such

a communication method fails to convey the same message of

protest associated with “an individual holding aloft a signUNITED BROTHERHOOD OF CARPENTERS v. NLRB 11597
bearing standard.” Picketing and handbilling on public property, while preserving the symbolism of the hand-held sign,

would fail to reach the Unions’ intended audience: patrons of

the Malls or of particular stores within the Malls. Physically

removing the protest from the offending employer’s location

would seriously diminish the symbolic and economic impact

of the message. Advertising the dispute in the media would

similarly fail to target the desired audience, and is significantly more expensive. The signage ban left the Unions with

a narrow range of ineffective options. Because the signage

ban is not narrowly tailored and does not leave open ample

alternatives for communication, the Board incorrectly applied

the law in determining that Rule 3 was a reasonable time,

place, or manner restriction. 

E

[13] The Board also found that Rule 5, excluding exterior

sidewalks from the designated areas where expressive conduct may occur, was a lawful time, place, or manner restriction.11

Because the Unions concede that this rule is content-neutral,

we begin by examining whether it is narrowly tailored to

serve a significant interest.12

11Federal courts have consistently protected expressive activities on

public sidewalks. See, e.g., United States v. Grace, 461 U.S. 171 (1983)

(invalidating statute prohibiting distribution of leaflets and display of signs

on sidewalks on Supreme Court grounds because not narrowly tailored).

California Courts have extended the same protection to privately-owned

sidewalks surrounding privately-owned shopping malls. See In re Lane,

457 P.2d 561 (Cal. 1969) (reaffirmed in Fashion Valley, 172 P.2d at 747).

12The dissent avoids this analysis by claiming that the validity of a regulation restricting petitioning activities to two designated areas has already

been determined by the California courts. The dissent cites the California

Court of Appeals’s decision in UNITE, 56 Cal.App.4th at 1012. The dissent then claims that a “state appellate court’s determination of state law

is binding and must be given deference,” citing Hicks v. Feiock, 485 U.S.

624, 629-30, 630 n.3 (1988) for support. Hicks actually says that a federal

court is not to apply a rule different from that stated by the state intermedi11598 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
According to Valentine, limiting expressive activities to

certain designated areas is necessary to preserve traffic flow

and ensure compliance with fire codes. Macerich excluded

sidewalks from the designated areas for expressive activities

because of a concern that mall patrons would have to step into

the street to avoid expressive activity on sidewalks, thereby

jeopardizing their safety. The Unions acknowledge that these

safety and convenience interests are significant, but argue that

the exclusion of sidewalks from the designated areas for

expressive activity is not narrowly tailored to advance these

interests. 

[14] Specifically, the Unions argue that the mall sidewalks

are no different from — or narrower than — sidewalks in

most downtown areas, on which expressive activities are permitted. This reasoning finds support in Grace, in which the

United States Supreme Court stated, “the building’s perimeter

sidewalks are indistinguishable from other public sidewalks in

the city that are normally open to the conduct that is at issue

here. . . .” 461 U.S. at 182. The California Supreme Court has

acknowledged that “[p]ersons can be excluded entirely from

areas where their presence would threaten personal danger or

block the flow of passenger or carrier traffic, such as doorways and loading areas.” In re Hoffman, 434 P.2d 353, 358

(Cal. 1967). However, Rule 5 restricts significantly more than

activity in doorways and loading areas. 

ate appellate court where “the highest court has refused to review the

lower court’s decision rendered in one phase of the very litigation which

is now prosecuted by the same parties before the federal court.” Id. at 630

n.3. This is not the case here. Hicks also states that “where an intermediate

appellate state court rests its considered judgment upon the rule of law

which it announces, that is a datum for ascertaining state law which is not

to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Id.

A thorough time, place, and manner analysis convinces us that the California Supreme Court would conclude that the exclusion of sidewalks from

the designated areas for expressive activities violates free speech protections. 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11599
The Unions argue that numerous obvious and less restrictive alternatives could achieve the Malls’ goals. For instance,

they suggest that fire code compliance could be ensured by

regulations prohibiting expressive activities in entrances and

other locations that must be kept clear. Cf. Berger, 512 F.3d

at 603 (upholding rule restricting expressive activity to sixteen designated locations because the rule furthered “significant city interests, by keeping street performances from

posing threats to the flow and convenience of . . . patrons in

heavily congested areas and entrances to buildings”). We

agree, and add that regulations prohibiting the restriction of

traffic flow on sidewalks would sufficiently address the other

safety and convenience concerns.13

Rule 5 also fails to leave open ample alternatives for communication. We have previously recognized that effective

communication depends on the speaker’s ability to address

the intended audience. In United States v. Baugh, for example, we held that a statute requiring a permit to demonstrate

on National Park property was unlawful when applied so as

to refuse a group permission to demonstrate in front of a

Park’s visitors’ center. 187 F.3d 1037, 1044 (9th Cir. 1999).

13Macerich argues that UNITE, 56 Cal.App.4th at 1010-13, compels a

contrary conclusion. We note that the rule discussed by the California

Court of Appeal in UNITE prohibited a demonstration in front of a particular store because the demonstration would have violated a fire code. The

UNITE court held that the preferred demonstration area was not an appropriate place to conduct expressive activities. Id. at 1012. In the situation

at issue here, no fire code was shown to have been violated; there is no

demonstrated reason that sidewalks are not an appropriate place for

expressive activities. While the reasoning in UNITE was extrapolated to

apply to several other mall rules, including rules that are more similar to

Rule 5, the UNITE court did not perform a narrow tailoring analysis on

any restriction other than that prohibiting a demonstration that would have

violated a fire code. Because the analysis of whether a restriction on

expressive activity is sufficiently narrowly tailored is necessarily a factspecific inquiry, see Berger, 512 F.3d at 601-04 (analyzing whether several restrictions on the location of speech activities sufficiently matched

the stated interests), UNITE does not guide our analysis here. 

11600 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
We noted that the demonstrators were ordered to a “First

Amendment area” 150 to 175 yards away from the visitors’

center where their target audience was located, and that this

was an insufficient alternative for communication because the

demonstrators were “left with no alternative that allowed

[them] to reach [their] intended audience.” Id.

[15] Here, the Malls cover large areas and have numerous

entrances. By banning expressive activity on sidewalks and

confining expressive activity to designated areas which may

be hundreds of yards from any given store or its patrons,

Macerich has effectively cut off access to the Unions’

intended audience(s). The fact that the Unions may still advertise their dispute in the media, and picket and handbill on public property, again fails to cure the constitutional infirmity.

Because Rule 5 is not narrowly tailored and does not leave

open ample alternatives for communication, it is not a lawful

time, place, or manner restriction. 

F

[16] Finally, we turn to Rule 6, the prohibition on expressive activities during peak traffic periods. As applied by both

Malls, Rule 6 prohibits expressive activity throughout almost

the entire holiday shopping period: the time from Thanksgiving through the end of December. During this period, mall

traffic doubles, and the Malls’ tenants do 75% of their yearly

business. Based on this evidence of increased mall traffic, the

Board found the peak traffic rule to be justified by interests

in public safety, preserving traffic flow, and controlling congestion. 

A complete ban on expressive activities is narrowly tailored

only where “each activity within the proscription’s scope is an

appropriately targeted evil.” Frisby, 487 U.S. at 485.

Macerich has failed to explain how banning every expressive

activity during peak times advances a significant interest.

Instead, Macerich attempted to justify the entire ban as a

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11601
“common sense” measure to decrease crowding during peak

times. Numerous less restrictive alternatives would promote

the same interest, including a limit on the number of individuals engaged in expressive activities at any one time.14

Although a regulation need not be the least restrictive method

of advancing a compelling interest, G.K., 436 F.3d at 1074,

the complete ban at issue here is certainly overbroad. 

[17] The complete ban on expressive activities, more than

any of the other mall rules, fails to leave open ample alternatives for communication. Again, Macerich suggests the alternatives of media advertising, demonstrations on public

property, and expressive activity in the Malls during the days

of the year when such activity is not entirely prohibited. As

discussed above, the options of media advertising and picketing on public property are neither effective nor economical.

Limiting expressive activity to non-peak times eliminates the

opportunity to comment upon or criticize — directly and inperson — tenants’ actions during the time that they make 75%

of their sales, and forecloses any chance of effectively reaching a large percentage of the target audience. For these rea14The Board points to H-CHH and UNITE, in which California courts

upheld similar restrictions on expressive activities during peak traffic periods, to support its conclusion that the peak traffic rule is permissible.

Because neither H-CHH nor UNITE explicitly addressed whether the regulations in question were narrowly tailored, we do not find them informative in this analysis. The dissent also cites Costco Cos., Inc. v. Don

Gallant, 96 Cal.App.4th 740, 753 (Ct. App. 2002). The context in Costco

was markedly different from that in the present case. Costco supplied evidence that petitioner gatherers in its store had directly interfered in the

store’s business, and imposed considerable expenses, administrative burdens, and risks. Id. at 750-51. Petition gatherers had physically and verbally abused staff and customers, and altercations between proponents and

opponents of particular petition gathering efforts had escalated to the point

that rifles had been pointed at petition gatherers. Id. at 751-52. Given these

circumstances, the court determined that Costco had the right to impose

regulations designed to protect its business operations, and that limiting

interferences to its less profitable days was a rational restriction. Id. at

753. 

11602 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
sons, the peak traffic rule is not a reasonable time, place, or

manner restriction.

III

Rules 1 (identification ban) and 2 (commercial purpose

rule) are impermissible content-based restrictions on expressive activity. Rule 4 (application requirement) is likewise

unlawful when used to enforce Rules 1 and 2. Rules 3 (signage ban), 5 (designated areas rule), and 6 (peak traffic rule)

are content-neutral, but cannot be justified as reasonable

restrictions on the time, place, or manner of expressive activities. Because the promulgation and enforcement of each of

these rules impermissibly infringes on the free speech rights

preserved by the California Constitution, we hold that the

Malls had no right to exclude union representatives from their

premises under state law. The enforcement of the contested

mall rules against Union representatives, and the exclusion of

the Union representatives from mall property, was therefore

a violation of section 8(a)(1). We grant the Unions’ petition,

grant in part and deny in part the Board’s petition, and deny

Macerich’s petition. 

PETITIONS GRANTED IN PART; DENIED IN PART

CALLAHAN, Circuit Judge, concurring in part and dissenting in part: 

I agree that Macerich’s efforts to impose content-based

restrictions (rules 1, 2, and 4) on speech do not survive strict

scrutiny. I respectfully dissent from the majority’s holding

that Macerich’s admittedly content-neutral time, place, and

manner restrictions (rules 3, 5, and 6) are unlawful under the

National Labor Relations Act (“NLRA”) because the California courts have approved the challenged restrictions. The federal courts may not ignore state case law balancing the

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11603
freedom of expression under the state constitution against

state property laws; particularly where there is no federal right

to engage in the particular expressive activity on private property. 

In labor relations, “[t]he ultimate problem is the balancing

of the conflicting legitimate interests. The function of striking

that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject

to limited judicial review.” NLRB v. Truck Drivers Local

Union No. 449, 353 U.S. 87, 96 (1957) (emphasis added). We

accord considerable deference to the National Labor Relations

Board’s (“NLRB” or “Board”) interpretation of the NLRA as

long as it is “rational and consistent” with the statute. NLRB

v. Calkins, 187 F.3d 1080, 1085 (9th Cir. 1999). We uphold

decisions of the NLRB on appeal if the findings of fact are

supported by substantial evidence and if the agency correctly

applied the law. Retlaw Broadcasting Co. v. NLRB, 172 F.3d

660, 664 (9th Cir. 1999). It is well-settled that the NLRB is

bound by state law when determining the right of nonemployee union representatives to access an employer’s private

property. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200,

217 n.21 (1994); Lechmere, Inc. v. NLRB, 502 U.S. 527, 535

(1992). Therefore, it follows that if California courts hold that

a time, place, or manner restriction is permissible under California law, then the NLRB should be entitled to rely on those

cases when attempting to determine if a mall has violated

NLRA section 8(a)(1). 

A. California courts properly apply intermediate scrutiny to

content neutral restrictions on free speech on private

property. 

A content-neutral time, place, and manner restriction must

be “narrowly tailored to serve a significant governmental

interest,” and “leave open ample alternative channels for the

communication of the information.” Ward v. Rock Against

11604 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
Racism, 491 U.S. 781, 791 (1989). “A statute is narrowly tailored if it targets and eliminates no more than the exact source

of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S.

474, 485 (1988). Whether a regulation leaves open ample

alternative channels for communication of the information

requires analyzing if the message “could not be communicated in other ways” and the barriers to conveying the

intended message. Clark v. Cmty for Creative Non-Violence,

468 U.S. 288, 294 (1984). “[A]n incidental burden on speech

is no greater than is essential, and therefore is permissible

under [United States v.] O’Brien[, 391 U.S. 367, 377 (1968)],

so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively

absent the regulation.” United States v. Albertini, 472 U.S.

675, 689 (1985). “The validity of such regulations does not

turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting

significant government interests.” Id. 

There is no federal right to engage in First Amendment

activity that is unrelated to the business of a privately owned

shopping center. Hudgens v. NLRB, 424 U.S. 507, 518

(1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 570 (1970).

California has chosen to provide additional protection for

expressive activity in private shopping malls under article I,

section 2 of the California Constitution. Fashion Valley Mall,

LLC v. NLRB, 172 P.3d 742, 749-50 (Cal. 2007). California

courts have concluded, however, that shopping malls may

impose reasonable time, place, and manner restrictions upon

speech. Robins v. Pruneyard Shopping Ctr., 592 P.2d 341,

347 (Cal. 1979); see also Fashion Valley Mall, 172 P.3d at

754 (reaffirming that “[s]hopping malls may enact and

enforce reasonable regulations of the time, place, and manner

of such free expression to assure that these activities do not

interfere with the normal business operations of the mall

. . .”). California law allows content-neutral regulation of

speech by municipalities and private actors if the regulations

are narrowly tailored to protect a proper municipal or private

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11605
interest. See In re Hoffman, 434 P.2d 353, 355-56 (Cal. 1967)

(discussing balancing use of property for municipal or private

purposes and the First Amendment). Because California

courts apply the exact same scrutiny to time, place, and manner restrictions on First Amendment activity as federal courts,

the NLRB is entitled to rely upon a California court’s determination that restrictions similar to those imposed by

Macerich are proper methods of protecting private property

rights under state law.

B. The majority’s decision fails to give proper deference to

the mall’s time, place, and manner regulation of the

wearing and carrying of signs. 

Macerich has not imposed a complete ban on the use of

signs, but rather has a rule that “[p]articipants may not carry

or wear any signs, posters or placards.”

1

 Macerich allows

posters, placards, displays and signs that are smaller than 22

inches by 28 inches and are affixed to a table “so as not to

endanger any person or property, block the view of any tenant’s store or display, or directly compete with Center activities or the business displays or logos of Center tenants.” 

California courts have recognized that private property

owners have different interests than municipalities for the purposes of balancing those interests against First Amendment

rights. In re Hoffman, 434 P.2d at 355 n.3. Private property

owners have an interest in avoiding interference with the

commercial purposes of property.2Id. at 356-67. This

1Strangely, the majority omits the first part of the rule, which states,

“[p]articipants may hold clipboards and leaflets.” 

2The majority claims that the state court decisions approving contentneutral restrictions on expressive activity do not include the right to

exclude. California courts have repeatedly stated that unprotected interference with the operation of commercial property may result in expulsion.

See In re Hoffman, 434 P.2d at 357 (stating that “[h]ad petitioners in any

way interfered with the conduct of the railroad business, they could legiti11606 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
includes an “interest in controlling litter and traffic,” Savage

v. Trammel Crow Co., Inc., 273 Cal. Rptr. 302, 307 (Ct. App.

1990), and consideration of “whether the number and/or size

of signs, posters or placards will interfere with and/or directly

compete with business displays or logos.” H-CHH Assocs v.

Citizens for Representative Gov’t, 238 Cal. Rptr. 841, 856

(Ct. App. 1987) (“H-CHH”) disapproved on other grounds by

Fashion Valley Mall, 172 P.3d at 754 n.12. Under California

law, “the requirement of narrow tailoring is satisfied ‘so long

as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” Savage, 273 Cal. Rptr. at 307 (quoting Albertini, 472

U.S. at 689). 

In this case, restricting the union members from wearing

signs or carrying pickets promotes Macerich’s substantial

interest in making sure that protesters do not block access to

stores or the sight-lines for store displays or impede foot traffic. That interest “would be achieved less effectively absent

the regulation.” Id. As already noted, California courts have

stated that commercial property owners may “consider[ ]

whether the number and/or size of signs, posters or placards

will interfere with and/or directly compete with business displays or logos.” H-CHH Assocs, 238 Cal. Rptr. at 856. 

The majority concludes that the ban on wearing or carrying

signs does not leave open ample alternatives for communication, speculating about the adequacy of various alternatives

including Macerich’s allowance of two signs attached to a

table. The Supreme Court, however, requires us to give defermately have been asked to leave”; Slauson P’ship v. Ochoa, 5 Cal. Rptr.

3d 668, 686 (Ct. App. 2003) (stating “our analysis starts with the fact that

because the Mall is private property, Slauson did have the right to exclude

persons from entering the Mall, and persons who entered the property

without its permission were trespassing.”); Albertson’s, Inc. v. Young, 131

Cal. Rptr. 2d 721, 738 (Ct. App. 2003) (noting failure to comply with rules

triggers the owner’s right to stop the activity). 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11607
ence to reasonable determinations that substantial interests are

best served by the restriction at issue. See Ward, 491 U.S. at

799 (“The Court of Appeals erred in failing to defer to the

city’s reasonable determination that its interest in controlling

volume would be best served by requiring bandshell performers to utilize the city’s sound technician.”).3

 In fact, the Court

has stated that the “less restrictive-alternative analysis has

never been part of the inquiry into the validity of a time,

place, and manner regulation.” Ward, 491 U.S. at 787 (internal quotations and citations omitted). The Court went on to

conclude that it is error to “sift[ ] through all the available or

imagined alternative means of regulating [activity] in order to

determine whether the city’s solution was ‘the least intrusive

means’ of achieving the desired end.”

4

Id. 

The proper analysis is whether Macerich’s rules “foreclose

an entire medium of public expression across the landscape of

a particular community or setting.” Menotti v. City of Seattle,

3

Indeed, the Supreme Court has repeatedly admonished lower courts not

to use the “ample alternative channels” requirement as a means of overturning regulations. See Ward, 491 U.S. at 799 (reversing because “[t]he

alternative regulatory methods hypothesized by the Court of Appeals

reflect nothing more than a disagreement with the city over how much

control of volume is appropriate or how that level of control is to be

achieved”); Albertini, 472 U.S. at 689 (“The validity of [time, place, or

manner] regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests”); Clark, 468 U.S. at 299 (“The Court

of Appeals’ suggestions . . . represent no more than a disagreement with

the Park Service over how much protection the core parks require or how

an acceptable level of preservation is to be attained. We do not believe,

however, that either United States v. O’Brien or the time, place, or manner

decisions assign to the judiciary the authority to replace the Park Service

as the manager of the Nation’s parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that

level of conservation is to be attained.”). 

4To the extent that the majority analyzes “numerous and less burdensome alternatives” to Macerich’s regulations to conclude they were not

narrowly tailored, this is an improper least-restrictive means analysis. See

Ward, 491 U.S. at 787. 

11608 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
409 F.3d 1113, 1138 (9th Cir. 2005) (quotations omitted). “In

the ‘ample alternatives’ context, the Supreme Court has made

clear that the First Amendment requires only that the government refrain from denying a ‘reasonable opportunity’ for

communication.” Id. at 1141 (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 (1986)). Foreclosing one

narrow form of expression while allowing “myriad and

diverse” alternatives for reaching the intended audience does

not violate the First Amendment. One World One Family Now

v. City & Cty of Honolulu, 76 F.3d 1009, 1014 (9th Cir.

1996). 

The majority assumes that picketing includes the right to

wear or carry signs. The Board, however, has noted that

“picketing does not require the holding of a sign.” Laborers

Int’l Union of N. Am., 287 NLRB 570, 573 (1987) (citing

United Mine Workers of Am., District 12, 177 NLRB 213, 218

(1969)). I cannot find any authority that defines picketing to

necessarily include the carrying or wearing of signs. See

Frisby, 487 U.S. at 483 (noting ordinance stated that pickets

“need not be carrying a sign”). Macerich’s rule forbidding the

wearing or carrying of signs did not ban “picketing.”

5

 Indeed,

I conclude that Macerich’s rule foreclosed only one method

of “picketing” and did not categorically deny the unions of

their ability to express their dissatisfaction with the use of

non-union labor. 

Macerich’s rules left open ample alternative means for the

unions to communicate their message to the mall patrons. The

5There is no absolute right to picket. See Frisby, 487 U.S. at 486-87

(noting that picketing can be offensive and intrusive). The passage from

the California Supreme Court’s decision in Fashion Valley Mall cited in

support of a broader picketing right concerned content-based restrictions

on picketing activity, not a content-neutral restriction. See Fashion Valley

Mall, 172 P.3d at 748 (discussing Diamond v. Bland, 477 P.2d 733, 741

(Cal. 1970), which invalidated a rule that “all activity apart from regulated, mutually beneficial business promotions and displays, whether by

tenants or strangers, is forbidden on the premises of the Center”). 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11609
union could have used a table with two signs staffed by members, and Macerich’s rules allowed union members to carry

clipboards and leaflets with additional information for mall

patrons. The majority mentions that Local 586 representatives

went to Arden Fair Mall wearing shirts that said “Do Not

Patronize Arden Fair Mall — Unfair to Carpenters,” but fails

to note that there is no evidence that Arden Fair Mall ejected

the union representatives for wearing those shirts. Union

members were free to wear or carry signs on the public sidewalks surrounding the malls’ parking lots. The union had

“myriad and diverse” alternatives for communicating their

messages to mall patrons. 

As the majority acknowledges, under California law, “the

adequacy of alternative channels is not measured by the fondest hopes of those who wish to disseminate ideas.” Savage,

273 Cal. Rptr. at 308 (citing Clark, 468 U.S. at 295).

Although no California case has expressly approved of a rule

banning the wearing or carrying of signs, an intermediate

court has noted that commercial establishments are free to

establish restrictions on the size and number of signs, placards, and posters. H-CHH Assocs, 238 Cal. Rptr. at 856. Thus,

the California cases indicate that the California Supreme

Court would uphold a commercial property owner’s right to

ban the wearing or carrying signs, placards, or posters as narrowly tailored and leaving ample alternative channels for

communication and deny the petition. See Calkins, 187 F.3d

at 1089 (discussing how to interpret state law).

C. The designated areas rule and the peak days restriction

have been expressly approved by California courts. 

In In re Hoffman, 434 P.2d at 358, the California Supreme

Court stated:

Reasonable and objective limitations can be placed

on the number of persons who can be present for

First Amendment activities at the same time, and the

11610 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
persons present can be required so to place themselves as to limit disruption. In areas normally subject to congestion, such as ticket windows and

turnstiles, First Amendment activities can be prohibited. Persons can be excluded entirely from areas

where their presence would threaten personal danger

or block the flow of passenger or carrier traffic, such

as doorways and loading areas. 

In Union of Needletrades, Indus. & Textile Employees v.

Superior Court, 65 Cal. Rptr. 2d 838, 847 (Ct. App. 1997)

(“UNITE”), a California Court of Appeal held that “a shopping center is constitutionally empowered to enact a rule limiting expressive activities to a particular area.” The union

wanted to distribute leaflets outside of Guess?, Inc. stores

located in six different malls instead of in the designated areas

provided by the shopping centers. Id. at 847-48. The state

appellate court rejected the union’s “most effective point of

persuasion” argument, concluding that the California

Supreme Court’s decision in Pruneyard, 592 P.2d at 347,

approving of time, place, and manner restrictions “to assure

that these activities do not interfere with normal business

operations” allowed the restriction of nonemployee union protesters to designated areas of the shopping center.6 UNITE, 65

Cal. Rptr. 2d at 849. The state court concluded that “a center

can impose reasonable and objective limitations on the number of persons who can be present and those persons can be

required to be in an area so as to limit disruption.” Id. at 848.

As a result, the state appellate court held that several rules,

including rules restricting petitioning activity to two desig6Although under the First Amendment the nature of the message may

create a stronger interest in the symbolic location of the activity and the

ability to reach a specific audience, see Galvin v. Hay, 374 F.3d 739, 747-

52 (9th Cir. 2004), California has not given additional protection to symbolic locations or more specific audiences (as opposed to mall patrons in

general) to expressive activity on private commercial property. See

UNITE, 65 Cal. Rptr. 2d at 849 n.4 (rejecting the most effective point of

persuasion argument). 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11611
nated areas in the malls, were valid time, place, and manner

restrictions under California law. Id. at 848-49. 

This case is no different, and if the restriction of petitioning

activity to two designated areas is acceptable under California

law, the NLRB must follow California law.7 Lechmere, 502

U.S. at 538. California courts have balanced the expressive

rights of unions under the California Constitution against

property owners’ rights under state property law. This is a

question of state law that we are not free to reject. West v.

AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the

state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as

defining state law. . . .”); see also Calkins, 187 F.3d at 1095

(noting that if California provides additional protection, it

does so by modifying state property law). 

The majority’s reliance on the unavailability of the sidewalks and entrances immediately outside the stores to conclude that Macerich’s restrictions are not narrowly tailored is

also not supported by California law. See Lushbaugh v. Home

Depot U.S.A., 113 Cal. Rptr. 2d 700, 707 (Ct. App. 2001)

(noting designated areas may be located away from motorized

traffic, foot traffic, and entrances).8 Furthermore, California

courts have concluded that the additional protection of speech

in shopping malls under state law does not include a right to

conduct activity at the most effective point of persuasion.

UNITE, 65 Cal. Rptr. at 849 n.4 (collecting cases). The Board

properly relied on UNITE in its decision; therefore, the

7To the extent the majority once again engages in an analysis of potential alternative regulations and relies upon the existence of less restrictive

means to invalidate the restriction, their reasoning is improper under

Supreme Court precedent. See Ward, 491 U.S. at 787; Albertini, 472 U.S.

at 689. 

8The California appellate court in Lushbaugh specifically cited to XilojItzep v. City of Agoura Hills, 29 Cal. Rptr. 2d 879, 889-90 (Ct. App.

1994), which applied the narrowly tailored test in upholding a ban on

vehicle-addressed solicitation. 

11612 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
Board’s decision is “rational and consistent” with California

law.9 Calkins, 187 F.3d at 1085. 

Similarly, California courts have upheld so-called “peak

days” restrictions in H-CHH, 238 Cal. Rptr. at 858 (approving

of ban on heavy traffic days if the dates are set forth in writing); UNITE, 65 Cal. Rptr. 2d at 850 (approving of “holiday

blackout periods” ranging from 25 specific days to the period

between the weekend before Thanksgiving through January 2

of the next year); and Costco Cos., Inc. v. Don Gallant, 117

Cal. Rptr. 2d 344, 353-54 (Ct. App. 2002) (affirming restrictions on expressive activity on 34 busiest days). Indeed,

Macerich’s rule restricting expressive activity on 30 peak

business days, accompanied by the list of unavailable dates,

is more lenient than the restriction approved by the state court

in Costco Cos, Inc. by four (4) days. In UNITE, the state

appellate court approved restrictions on expressive activity

spanning between the weekend before Thanksgiving through

January 2nd, a period of forty-two (42) days. Accordingly, the

Supreme Court’s opinion in Lechmere, 502 U.S. at 535, as

well as our own precedents, mandate that we accept state law

and uphold the Board’s determination that Macerich’s peak

days limitations are a valid time, place, and manner regulations. 

The majority attempts to distinguish the California cases by

stating that they do not discuss whether the rules are narrowly

tailored. Both UNITE and H-CHH contain numerous citations

to In re Hoffman, Savage, and other California cases specifically applying intermediate scrutiny to time, place, and man9The majority states that Macerich did not show that the demonstration

violated a fire code. The Board specifically found that the designated area

rule “assists the Respondent with complying with local fire codes.” The

malls introduced evidence that local fire codes required eight to ten foot

clearances around entrances, and that the sidewalks were not sufficiently

large to accommodate those clearances. I am unable to locate any authority requiring that Macerich establish a fire code violation before the fire

code can be a substantial interest under the narrowly tailored test. 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11613
ner restrictions. In fact, UNITE specifically refers to other

portions of the days limitations under a “content neutral”

analysis as being “narrowly drawn” and then approves the

blackout periods as “[e]qually appropriate” under California

law. UNITE, 65 Cal. Rptr. 2d at 850. It is clear that the California courts in UNITE and H-CHH were applying intermediate scrutiny to content-neutral restrictions. We are not free to

ignore clear state law precedents simply because their analysis

was not as explicit as we would like. Even if UNITE and HCHH fail to discuss intermediate scrutiny with sufficient clarity, the majority completely ignores the state court’s analysis

in Costco that: 

Costco’s regulation is narrowly tailored because it

protects Costco’s substantial interests in the smooth

operation of its stores on those days, which represent

less than 10 percent of a calendar year, when those

legitimate interests are most vulnerable to the disruption which expressive activity has from time to time

engendered at Costco’s stores. Because the 34-day

ban is content neutral and leaves more than 300

other days during the calendar year in which expressive activity is permitted, it satisfies the remaining

requirements of a valid regulation of time, place, and

manner. 

117 Cal. Rptr. 2d at 354. 

We are bound by a state court’s interpretation of state law

when reviewing the NLRB’s determination of whether there

has been a violation of section 8(a)(1) of the NLRA when the

NLRB must balance section 7 expressive rights against state

property rights. Thunder Basin Coal Co., 510 U.S. at 217

n.21; Glendale Assocs, 347 F.3d at 1152; Calkins, 187 F.3d

at 1088. We may not substitute our interpretations of California law for that of the California courts of appeal. See Hicks

v. Feiock, 485 U.S. 624, 629-30, 630 n.3 (1988) (noting state

appellate court’s determination of state law is binding and

11614 UNITED BROTHERHOOD OF CARPENTERS v. NLRB
must be given deference). “[O]nly state courts may authoritatively construe state statutes.” BMW of N. Am., Inc. v. Gore,

517 U.S. 559, 577 (1996). “In the absence of convincing evidence that the state supreme court would decide differently,

‘a federal court is obligated to follow the decisions of the

state’s intermediate courts.’ ” Easyriders Freedom F.I.G.H.T.

v. Hannigan, 92 F.3d 1486, 1494 n.4 (9th Cir. 1996) (quoting

In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990)). The

majority’s opinion fails to give deference to state law, and

appears to misuse the requirement of ample alternative channels to conduct a least-restrictive means analysis to invalidate

content-neutral rules. In doing so, the majority disregards

state cases approving the types of content-neutral restrictions

Macerich imposed on expression for its malls, disapproves of

the Board’s proper reliance on state law, and attempts to

create expressive rights under California law at the expense of

state property rights. 

Accordingly, I dissent. 

UNITED BROTHERHOOD OF CARPENTERS v. NLRB 11615