The 1st Amendment and Private Property - contradictory?

[MrFun]

Originally posted by Kidicious


Best Buy is a public area. Take a look around. It's built to function that way.

huh?

[Kidlicious]

Originally posted by Imran Siddiqui
Kid, just admit you are wrong, k?

Malls are considered semi-public areas, but that is obviously different from a store which is set up to move merchandise. Malls are set up like parks with stores around it. Though even there, there isn't full free speech rights.

I was referring to shopping centers and malls, not the actual stores.

[David Floyd]

Best Buy is a public area. Take a look around. It's built to function that way.

But Best Buy, as does any other retailer, reserves the right to refuse service to anyone. Circuit City, Best Buy, and your local shopping mall all reserve the right to throw someone out who is using a bullhorn to spout derogatory speech, for example.

But if you don't believe me, why don't you try it out for yourself. Go in to your retailer of choice, and curse out as many employees as you can find in the most violent, vehement, and offensive manner you can think of, and see if you don't get kicked out.

[Kidlicious]

Originally posted by David Floyd


But Best Buy, as does any other retailer, reserves the right to refuse service to anyone. Circuit City, Best Buy, and your local shopping mall all reserve the right to throw someone out who is using a bullhorn to spout derogatory speech, for example.

But if you don't believe me, why don't you try it out for yourself. Go in to your retailer of choice, and curse out as many employees as you can find in the most violent, vehement, and offensive manner you can think of, and see if you don't get kicked out.

I'm not talking about cusing people out. I already stated that.

[MichaeltheGreat]

Originally posted by Kidicious


Best Buy is a public area. Take a look around. It's built to function that way.

You're confusing public property with publicly accessible areas of private property. When you go to Best Buy, or the mall parking lot or common area around Best Buy, you are on private property as an invitee (it has nothing to do with actually being invited, it has to do with the nature of your permission to be there. Your legal right of access to the property can be revoked if you do not follow the owners or their agents' rules for entering and remaining in the property.

[Kidlicious]

dp

[Kidlicious]

PRUNEYARD SHOPPING CENTER ET AL. v. ROBINS ET AL.
SUPREME COURT OF THE UNITED STATES
447 U.S. 74
June 9, 1980, Decided

MR. JUSTICE REHNQUIST delivered the opinion of the Court.
We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented. Those are whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.

Appellant PruneYard is a privately owned shopping center in the city of Campbell, Cal. It covers approximately 21 acres -- 5 devoted to parking and 16 occupied by walkways, plazas, sidewalks, and buildings that contain more than 65 specialty shops, 10 restaurants, and a movie theater. The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. This policy has been strictly enforced in a nondiscriminatory fashion. The PruneYard is owned by appellant Fred Sahadi.

Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against "Zionism." On a Saturday afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly and so far as the record indicates was not objected to by PruneYard's patrons.

Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard's perimeter. Appellees immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access to the PruneYard for the purpose of circulating their petitions.

The Superior Court held that appellees were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property. The California Court of Appeal affirmed.

The California Supreme Court reversed, holding that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." It concluded that appellees were entitled to conduct their activity on PruneYard property. In rejecting appeallants' contention that such a result infringed property rights protected by the Federal Constitution, the California Supreme Court observed:

"'It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations would not markedly dilute defendant's property rights.'

Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State's laws of private property. We now affirm....

III

Appellants first contend that Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Lloyd dealt with the question whether under the Federal Constitution a privately owned shopping center may prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center's operations. The shopping center had adopted a strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Respondents in Lloyd argued that because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. In rejecting this claim we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), which was later overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). We stated that property does not "lose its private character merely because the public is generally invited to use it for designated purposes," and that "[the] essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center."

Our reasoning in Lloyd, however, does not limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not contravene any federal constitutional provision....

V

Appellants contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others. They state that in Wooley v. Maynard (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale applies here, they argue, because the message of Wooley is that the State may not force an individual to display any message at all.

Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee's personal property that was used "as part of his daily life," and refused to permit him to take any measures to cover up the motto even though the Court found that the display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping center by choice of its owner is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law.

Appellants also argue that their First Amendment rights have been infringed in light of West Virginia State Board of Education v. Barnette (1943), and Miami Herald Publishing Co. v. Tornillo (1974). Barnette is inapposite because it involved the compelled recitation of a message containing an affirmation of belief. This Court held such compulsion unconstitutional because it "[required] the individual to communicate by word and sign his acceptance" of government-dictated political ideas, whether or not he subscribed to them. Appellants are not similarly being compelled to affirm their belief in any governmentally prescribed position or view, and they are free to publicly dissociate themselves from the views of the speakers or handbillers.

Tornillo struck down a Florida statute requiring a newspaper to publish a political candidate's reply to criticism previously published in that newspaper. It rests on the principle that the State cannot tell a newspaper what it must print. The Florida statute contravened this principle in that it "[exacted] a penalty on the basis of the content of a newspaper." There also was a danger in Tornillo that the statute would "[dampen] the vigor and [limit] the variety of public debate" by deterring editors from publishing controversial political statements that might trigger the application of the statute. Thus, the statute was found to be an "intrusion into the function of editors." These concerns obviously are not present here.

We conclude that appellants' First Amendment rights have not been infringed by the California Supreme Court's decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants' property. The judgment of the Supreme Court of California is therefore Affirmed.

MR. JUSTICE WHITE, concurring in part and concurring in the judgment.

The Court also affirms the California Supreme Court's implicit holding that appellants' own free-speech rights under the First and Fourteenth Amendments were not infringed by requiring them to provide a forum for appellees to communicate with the public on shopping center property. I concur in this judgment, but I agree with MR. JUSTICE POWELL that there are other circumstances that would present a far different First Amendment issue. May a State require the owner of a shopping center to subsidize any and all political, religious, or social-action groups by furnishing a convenient place for them to urge their views on the public and to solicit funds from likely prospects? Surely there are some limits on state authority to impose such requirements; and in this respect, I am not in entire accord with Part V of the Court's opinion.

MR. JUSTICE POWELL, with whom MR. JUSTICE WHITE joins, concurring in part and in the judgment.

Restrictions on property use, like other state laws, are invalid if they infringe the freedom of expression and belief protected by the First and Fourteenth Amendments. In Part V of today's opinion, the Court rejects appellants' contention that "a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." I agree that the owner of this shopping center has failed to establish a cognizable First Amendment claim in this case.
But some of the language in the Court's opinion is unnecessarily and perhaps confusingly broad. In my view, state action that transforms privately owned property into a forum for the expression of the public's views could raise serious First Amendment questions.

The State may not compel a person to affirm a belief he does not hold. Whatever the full sweep of this principle, I do not believe that the result in Wooley v. Maynard, supra, would have changed had the State of New Hampshire directed its citizens to place the slogan "Live Free or Die" in their shop windows rather than on their automobiles. In that case, we said that "[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts." This principle on its face protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is "not limited to [his] personal use. . . ." A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable."

As the Court observes, this case involves only a state-created right of limited access to a specialized type of property. But even when no particular message is mandated by the State, First Amendment interests are affected by state action that forces a property owner to admit third-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself. For example, a law requiring that a newspaper permit others to use its columns imposes an unacceptable burden upon the newspaper's First Amendment right to select material for publication. Such a right of access burdens the newspaper's "fundamental right to decide what to print or omit." As such, it is tantamount to compelled affirmation and, thus, presumptively unconstitutional. n2

The selection of material for publication is not generally a concern of shopping centers. But similar speech interests are affected when listeners are likely to identify opinions expressed by members of the public on commercial property as the views of the owner. If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center, customers might well conclude that the messages reflect the view of the proprietor. The same would be true if the public were allowed to solicit or distribute pamphlets in the entrance area of a store or in the lobby of a private building. The property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else's belief. Should he choose the second, he has been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, cannot restore his "right to refrain from speaking at all."

A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. Numerous examples come to mind. A minority-owned business confronted with leaflet distributors from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak. The strong emotions evoked by speech in such situations may virtually compel the proprietor to respond.

The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property. But an owner who strongly objects to some of the causes to which the state-imposed right of access would extend may oppose ideological activities "of any sort" that are not related to the purposes for which he has invited the public onto his property. To require the owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his "freedom to maintain his own beliefs without public disclosure." Thus, the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner....

(In a proper case, the property owner also may be protected by the principle that "a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Stanley v. Georgia 394 U.S. 557 (1969). Observing that a State has no interest in controlling the moral content of a person's thoughts, the Court in Stanley invalidated a law imposing criminal penalties for the private possession of obscenity. Stanley prevents a State from removing from the home expressive materials that a person may wish to peruse privately. The same principle may extend to state action that forces individual exposure to third-party messages. Thus, a law that required homeowners to permit speakers to congregate on their front lawns would be a massive and possibly unconstitutional intrusion into personal privacy and freedom of belief. No such problem arises in this case.)

II

One easily can identify other circumstances in which a right of access to commercial property would burden the owner's First and Fourteenth Amendment right to refrain from speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would support a holding in their favor under either of the legal theories outlined above.

On the record before us, I cannot say that customers of this vast center would be likely to assume that appellees' limited speech activity expressed the views of the PruneYard or of its owner. The shopping center occupies several city blocks. It contains more than 65 shops, 10 restaurants, and a theater. Interspersed among these establishments are common walkways and plazas designed to attract the public. Appellees are high school students who set up their card table in one corner of a central courtyard known as the "Grand Plaza." They showed passersby several petitions and solicited signatures. Persons solicited could not reasonably have believed that the petitions embodied the views of the shopping center merely because it owned the ground on which they stood.

Appellants have not alleged that they object to the ideas contained in the appellees' petitions. Nor do they assert that some groups who reasonably might be expected to speak at the PruneYard will express views that are so objectionable as to require a response even when listeners will not mistake their source. The record contains no evidence concerning the numbers or types of interest groups that may seek access to this shopping center, and no testimony showing that the appellants strongly disagree with any of them.

Because appellants have not shown that the limited right of access held to be afforded by the California Constitution burdened their First and Fourteenth Amendment rights in the circumstances presented, I join the judgment of the Court. I do not interpret our decision today as a blanket approval for state efforts to transform privately owned commercial property into public forums. Any such state action would raise substantial federal constitutional questions not present in this case.

See the bold type if you don't want to read the whole thing.

[Imran Siddiqui]

Originally posted by Kidicious
I was referring to shopping centers and malls, not the actual stores.

Best Buy isn't a mall though . If you are talking about shopping centers and malls, then yes, it is semi-public and may be subject to additional restrictions.

From your case

Our reasoning in Lloyd, however, does not limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not contravene any federal constitutional provision....

The case turned on the fact that the California Constitution gave greater free speech rights to individuals on private property than the federal Constitution.

[Kidlicious]

Originally posted by Imran Siddiqui

Our reasoning in Lloyd, however, does not limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not contravene any federal constitutional provision....

The case turned on the fact that the California Constitution gave greater free speech rights to individuals on private property than the federal Constitution.

What case are you talking about? Pruneyard was upheld.

[Imran Siddiqui]

YOUR case... the one you linked. The quote is from it... section III at the end.

[MichaeltheGreat]

He's talking about PruneYard - the SCOTUS decision was based solely on the California constitution conveying greater rights than does the Federal constitution to situations like the petitioning activity at the PruneYard.

Before you get your panties in a bunch, though, Pruneyard's appeal was based solely on their claimed First Amendment rights (the weakest argument), because they didn't have anything else to claim:

"On a Saturday afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly and so far as the record indicates was not objected to by PruneYard's patrons."

Because they were quiet and unobtrusive, and didn't bother anyone, they weren't creating any trespass or commercial or property rights issue.

If you go making speeches, staging rallies or sit-ins or protests, or go seeking out people who don't walk up to you, then you're still out on your ass in California. If your message is sufficiently objectionable to other patrons (say you're a NAMBLA member with a petition to remove age of consent laws and allow man-boy sex, or you're an anti-abortion protestor with 36 x 48 full color posters of photoshopped fetus pieces), then you're still out on your ass even if you're otherwise peaceful.

The property owner merely has to demonstrate that there was some harmful (commercially is just fine, you're not confined to physical damage) or disruptive element to your "speech" and you can be evicted.

Neither California law, nor the Rehquistically narrow PruneYard decision grants any sweeping right to expression on private property.

[Kidlicious]

Originally posted by MichaeltheGreat
Neither California law, nor the Rehquistically narrow PruneYard decision grants any sweeping right to expression on private property.

Nor did I claim it to, for the upteenthed time. The fact remains that businesses can not restrict any speech that they want, as is shown in this case.

[MichaeltheGreat]

To the extent that the business consists of an open space in a commercial mall in California, and the speech is limited to unobtrusively setting up a card table and conversing quietly with passers by, you're right, within those limitations. Congratulations, it's probably the first time you've been at least partly right about something on these forums. Have a cookie.

[Kidlicious]

You should have let your little padiwan (Kuciwalker) claim that I was pwned.

[MichaeltheGreat]

You still are. What you've claimed as a general rule is merely a very constrained exception to the opposite general rule.

Giving you points for your effort, if you get one more today, you'll meet the broken clock standard of reliability.