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PROPERTY RIGHTS AND FREE SPEECH: ALLIES OR ENEMIES?

Published online by Cambridge University Press:  04 June 2004

James W. Ely
James W. Ely
Affiliation:
Law and History, Vanderbilt University
Rights & Permissions [Opens in a new window]

Extract

Free speech has been treated as a preeminent constitutional right in the United States for more than half a century. The rights of property owners, on the other hand, have received little constitutional protection since the New Deal period of the 1930s. This modern dichotomy is particularly striking because it obscures an older constitutional tradition that equated economic liberty and freedom of expression. This tradition saw both property rights and speech rights as essential to the protection of personal freedom by restraining the power of government.

Information

Type
Research Article
Information
Social Philosophy and Policy , Volume 21 , Issue 2 , July 2004 , pp. 177 - 194
Copyright
© 2004 Social Philosophy and Policy Foundation

I. Introduction

Free speech has been treated as a preeminent constitutional right in the United States for more than half a century. The rights of property owners, on the other hand, have received little constitutional protection since the New Deal period of the 1930s. This modern dichotomy is particularly striking because it obscures an older constitutional tradition that equated economic liberty and freedom of expression. This tradition saw both property rights and speech rights as essential to the protection of personal freedom by restraining the power of government.

The framers of the U.S. Constitution and the Bill of Rights, drawing upon Whig political theory,1

Whig political theory refers to a set of beliefs associated with the Whig Party in Great Britain during the eighteenth century. Drawing on the philosophy of John Locke, Whigs favored limits on monarchical power and stressed the rule of law and the right to personal freedom. They regarded the right to enjoy property as a natural right and fashioned doctrines to defend the rights of property owners. Whiggism, with its emphasis on limited government and property rights, exerted a profound influence on constitutional thought in Revolutionary America. H. T. Dickinson, “Whiggism in the Eighteenth Century,” in John Cannon, ed., The Whig Ascendancy: Colloquies on Hanoverian England (New York: St. Martin's Press, 1981), 28–43; Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 16–28.

did not differentiate between the rights of property owners and other individual rights.2

James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights, 2d ed. (New York: Oxford University Press, 1998), 43.

Indeed, in his famous 1792 essay, “Property,” James Madison treated speech as a property right of individuals. He explained that “a man has a property in his opinions and the free communication of them.”3

James Madison, “Property,” National Gazette, March 27, 1792, reprinted in Robert A. Rutland et al., eds., The Papers of James Madison, vol. 14 (Charlottesville, VA: University Press of Virginia, 1983), 266.

Following in Madison's path, leading jurists sometimes equated free speech and property rights. Thomas M. Cooley was a member of the Michigan Supreme Court and the author of A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States (1868), the most important analysis of constitutional law in the late nineteenth century. In this seminal work he argued that freedom of speech entailed more than just the absence of prior restraints. Dissenting in an 1881 libel law case, which involved allegations of professional misconduct directed against an attorney, Cooley stressed that everyone must exercise rights with due regard for the rights of others. “This is as true of the right to free speech,” he observed, “as it is of the right to the free enjoyment of one's property.”4

Atkinson v. Detroit Free Press Company, 46 Mich. 341, 376; 9 N.W. 501, 520 (1881) (Cooley, J., dissenting).

Justice George Sutherland, the intellectual leader of the conservative bloc on the U.S. Supreme Court during the 1930s, also stressed the link between economic liberty and freedom of expression. In New State Ice Company v. Liebmann (1932), Sutherland, writing for the Court, found that an Oklahoma statute conferring de facto monopoly on established ice businesses infringed the due process right of others to engage in a lawful endeavor. Regulatory schemes in the 1930s were often justified as experiments in economic planning. Sutherland, however, insisted that government could not dispense with the essentials of liberty in the name of experiments. Revealingly, he ended his opinion in New State Ice with the following assertion:

[T]he theory of experimentation in censorship was not permitted to interfere with the fundamental doctrine of the freedom of the press. The opportunity to apply one's labor and skill in an ordinary occupation with proper regard for all reasonable regulations is no less entitled to protection.5

New State Ice Company v. Liebmann, 285 U.S. 262, 280 (1932). For a cogent analysis of Justice Sutherland's opinion in New State Ice, see Hadley Arkes, The Return of George Sutherland: Restoring A Jurisprudence of Natural Rights (Princeton, NJ: Princeton University Press, 1994), 53–60.

As this indicates, Sutherland was disinclined to distinguish between economic controls and regulations impacting First Amendment rights. In his mind, the sanctity of speech and the sanctity of economic liberty were equally deserving of constitutional protection.6

For a helpful discussion of Justice Sutherland's First Amendment views, see Samuel R. Olken, “The Business of Expression: Economic Liberty, Political Factions, and the Forgotten First Amendment Legacy of Justice George Sutherland,” William and Mary Bill of Rights Journal 10 (2002): 242–357.

The support accorded free speech by Cooley and Sutherland points toward the now largely forgotten conservative libertarian tradition of the nineteenth and early twentieth centuries that urged constitutional protection for both expressive and property rights. The conservative libertarians believed that respect for free speech and regard for private property were equally necessary to demarcate a sphere of individual autonomy. Thus, the prominent political scientist John W. Burgess asserted in 1896 that individual liberty encompassed security of private property as well as freedom of expression and conscience.7

John W. Burgess, Political Science and Comparative Constitutional Law, vol. 1 (Boston, MA: Ginn and Company, 1896), 178.

As Mark A. Graber pointed out, conservative libertarians “claimed that the liberty of speech was the same sort of right as the liberty of contract and, indeed, that the system of freedom of expression could only function if the government also protected private property.”8

Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991), 21. The conservative libertarian defense of free speech saw expression as one aspect of personal freedom. Modern civil libertarians, in contrast, separate free speech from property rights and justify the former in terms of promoting democratic governance rather than as an individual right. For the communitarian vision of the First Amendment, see Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993).

This affinity between property rights and free speech was torn asunder during the New Deal era. In the early twentieth century, Progressive thinkers launched a sustained attack on the constitutional protection of property and contractual rights. Assuming the desirability of state intervention in economic matters, they saw constitutionalized economic rights as barriers to legislation advancing their conception of the public good.9

See generally Barbara H. Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and Economics Movement (Cambridge, MA: Harvard University Press, 1998).

Their criticism eventually bore fruit in the late 1930s, when the Supreme Court began to uphold the validity of New Deal legislation and retreated from meaningful judicial review of economic regulations. After this dramatic shift, known as the constitutional revolution of 1937, the Court in short order sustained state minimum wage laws10

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

similar to those it had earlier condemned and approved a dramatic enlargement of federal governmental controls over the economy. For example, the justices upheld the National Labor Relations Act, which was designed to encourage trade unions,11

National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

as well as sweeping federal regulation of agricultural production.12

Wickard v. Filburn, 317 U.S. 111 (1942).

The Court also strengthened state rate-making authority over public utilities.13

Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944).

The cornerstone of New Deal constitutionalism was Footnote 4 of United States v. Carolene Products Co. (1938), which placed the rights of property owners in a subordinate category entitled to only a lesser degree of due process protection than other personal liberties.14

304 U.S. 144, 152–153 n.4 (1938).

Carolene Products was the source of bifurcated judicial review and led to the elevation of free speech to the status of a fundamental or preferred right and the nearly total uninterest in even hearing property right cases. However, as the New Deal Court empowered the federal government by largely abandoning the constraints of federalism and property rights, a new problem arose: How to restrain the power of the state? The justices turned to an expansive reading of free speech in order to check potential governmental abuses by means of the free expression of opinions and reliance on the political process.15

See John O. McGinnis, “The Once and Future Property-Based Vision of the First Amendment,” University of Chicago Law Review 63 (1996): 49.

Not surprisingly, in some situations the newly enlarged concept of free speech was held to trump the rights of property owners. For example, in Marsh v. Alabama (1946), the Supreme Court ruled, by a 5–3 margin, that streets in a privately owned company town were to be treated as a public forum for purposes of expressive activity.16

326 U.S. 501 (1946) (Justice Jackson took no part in the case). The case involved a Jehovah's Witness who tried to distribute religious literature. The Court specifically invoked the First Amendment freedoms of religion and of the press, but in today's parlance it is seen as a free speech case.

A plurality of the Court reasoned: “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more his rights become circumscribed by the statutory and constitutional rights of those who use it.”17

Id. at 506.

For a time, some observers saw Marsh as heralding a broad expansion of constitutional protection of First Amendment activities carried out on private property open to the public. Indeed, the Court in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968) ruled that a privately owned shopping mall was the equivalent of a company town and, therefore, was subject to the mandate of the First Amendment.18

391 U.S. 308 (1968).

It followed that union picketers could not be excluded from a private shopping center. This line of cases underscored the secondary constitutional status of private property. But the story does not end here. A harbinger of change was Justice Hugo Black's dissenting opinion in Logan Valley. Black, the author of the majority opinion in Marsh, insisted that there was no resemblance between a shopping center and a company town. He added that “whether this Court likes it or not, the Constitution recognizes and supports the concept of private ownership of property.”19

Id. at 330.

II. Right to Exclude

Despite its diminished constitutional position, private property remains central to the American economic system. Thus, it is important to understand the nature of ownership.

The right to maintain exclusive possession has long been seen as an essential component of the concept of property. William Blackstone, commenting in the late eighteenth century, provided a classic expression of this principle:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.20

William Blackstone, Commentaries on the Laws of England, vol. 2 (Oxford: Clarendon Press, 1766; reprint, Chicago, IL: University of Chicago Press, 1979), 2.

Blackstone's articulation of a right of “despotic dominion” seems somewhat excessive to modern ears.21

A. W. B. Simpson, “Land Ownership and Economic Freedom,” in Harry N. Scheiber, ed., The State and Freedom of Contract (Stanford, CA: Stanford University Press, 1998), 13–43.

It is hard to accept that an individual has total economic control over his or her land. Even in Blackstone's day the authority of landowners was limited by the law of nuisance.22

Id. at 25 (“Both regulatory law and the law of nuisance imposed curbs on the despotic dominion of the landowner.”).

Yet Blackstone's comment, however hyperbolic, is also insightful. In many respects the right of an owner to exclude others is vital to the enjoyment of property. Exclusive possession is necessary so that an owner can use or alienate property and thus derive economic gain. As a prominent modern scholar has aptly pointed out, “to the extent one has the right to exclude, then one has property; conversely, to the extent one does not have exclusion rights, one does not have property.”23

Thomas W. Merrill, “Property and the Right to Exclude,” Nebraska Law Review 77 (1998): 753.

During the nineteenth and early twentieth centuries, courts gave relatively little attention to defining property. Still, prominent jurists recognized the importance of the right to exclude others as an essential quality of property ownership. Justice Oliver Wendell Holmes, for example, explained in 1908: “The notion of property starts, I suppose, from confirmed possession of a tangible object and consists in the right to exclude others from interference with the more or less free doing with it as one wills.”24

White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1, 19 (1908) (Holmes, J., concurring).

In 1913, Justice Joseph McKenna similarly declared:

The conception of property is exclusiveness, the rights of exclusive possession, enjoyment and disposition. Take away these rights and you take all that there is of property. Take away any of them, force a participation in any of them and you take property to that extent.25

Pipe Line Cases, 234 U.S. 548, 571 (1913) (McKenna, J., dissenting).

Five years later Justice Louis D. Brandeis followed suit: “An essential element of individual property is the legal right to exclude others from enjoying it.”26

International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).

In recent years, since the high Court began showing a renewed interest in reviewing property rights cases in the 1970s, both federal and state courts have repeatedly emphasized the fundamental nature of the right to exclude in a variety of situations.27

See David L. Callies and J. David Breemer, “The Right to Exclude Others From Private Property: A Fundamental Constitutional Right,” Washington University Journal of Law and Policy 3 (2000): 39–59.

A few examples will suffice. In the leading case of Kaiser Aetna v. United States (1979), the Supreme Court, in an opinion by then-Justice William H. Rehnquist, declared “that the ‘right to exclude,’ so universally held to be a fundamental element of the property right,” could not be taken by the government without the payment of just compensation.28

444 U.S. 164, 179–180 (1979).

Likewise, in Loretto v. Teleprompter Manhattan CATV Corp. (1982), the Court insisted: “The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights.”29

458 U.S. 419, 435 (1982).

Similar sentiments have been expressed by numerous state courts. The Supreme Courts of Ohio30

Bresnik v. Beulah Park Limited Partnership, Inc., 67 Ohio St. 3d 302; 617 N.E.2d 1096 (1993).

and Nevada31

S.O.C., Inc. v. Mirage Casino-Hotel, 117 Nev. 403, 23 P.3d 243 (2001).

were especially forceful in articulating this view.

III. Public Forum Doctrine

In the late nineteenth century there was controversy over the rights of persons to engage in expressive activity on public property, such as streets and parks. The prevailing view was that individuals had no protected right to speak on public property. As Holmes maintained in 1895 while serving on the Supreme Judicial Court of Massachusetts: “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private home to forbid it in his house.”32

Commonwealth v. Davis, 162 Mass. 510, 511, 39 N.E. 113 (1895), aff'd. 167 U.S. 43 (1897).

Holmes analyzed the case entirely in property terms, treating public facilities the same as private property for the purpose of excluding certain uses. In his view, the government as a proprietor had the same authority as a private landowner. Holmes concluded that municipal authorities could forbid speech in the Boston Common by a lay preacher without a permit. The Supreme Court affirmed this decision in 1897.

This restrictive attitude, of course, was overthrown in the late 1930s when the Supreme Court ruled that government could not ban speech-related activities in streets and parks that served as public forums.33

Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939). Not all types of public property, however, are necessarily available for speaking or other First Amendment activities. There is no constitutional right, for example, to conduct protest demonstrations on the grounds of a jail, an area not traditionally open to the public. Adderley v. Florida, 385 U.S. 39, 47 (1966) (“The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”).

Such a conclusion, however, flew in the face of the prevailing line of authority from the nineteenth century. Ignoring historical practice, the Court rather fancifully asserted that streets and parks had long been used for speech and assembly, and unconvincingly sought to distinguish prior authority.34

Justice Pierce Butler, dissenting in Hague, accurately observed that the majority's position was contrary to the holding in Davis v. Massachusetts, 167 U.S. 43 (1897), discussed in the text at note 32. See 307 U.S. at 533. See generally David M. Rabban, Free Speech in Its Forgotten Years (Cambridge: Cambridge University Press, 1997), 165–69, 372–74.

It was the extension of the public forum doctrine to privately owned land, as in Marsh v. Alabama (discussed above), that set the stage for our contemporary disputes over speech in shopping malls.

IV. Free Speech in Shopping Malls

Over the past forty years the retail shopping pattern of most Americans has shifted away from downtown business districts. People today tend to shop and congregate in privately owned suburban malls.35

See generally William Severini Kowinski, The Malling of America: An Inside Look at the Great Consumer Paradise (New York: William Morrow, 1985).

With the decline of city streets as primary places for the dissemination of views, people desirous of exercising expressive rights have sought to gain access to malls. They have argued, in effect, that shopping centers are comparable to yesterday's town square and should be open to speech-related activity. This has given rise to a prolonged controversy over whether the common areas of such centers should be treated as public forums for First Amendment purposes. Not surprisingly, the owners of malls have stoutly resisted the notion that their property is a public forum.

A somewhat checkered line of Supreme Court decisions has established that there is no right under the U.S. Constitution to engage in expressive activity on the grounds of privately owned shopping centers. Only a few years after Logan Valley was decided, the Supreme Court began to back away from its ruling that a privately owned shopping mall was the equivalent of a company town and, thus, subject to the mandate of the First Amendment. In Lloyd Corporation v. Tanner (1972), a mall was allowed to ban the distribution of antiwar handbills. The Supreme Court ruled that a shopping center does not “lose its private character merely because the public is generally invited to use it for designated purposes.”36

Lloyd Corporation v. Tanner, 407 U.S. 551, 569 (1972).

Moreover, the Court stressed that the First Amendment only restrains governmental limitations on free speech and does not reach private actions. The Court revealingly concluded by noting the importance of both property and free speech rights:

We do say that the Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens, must be respected and protected. The Framers of the Constitution certainly did not think these fundamental rights of a free society are incompatible with each other. There may be situations where accommodations between them, and the drawing of lines to assure due protection of both, are not easy.37

Id. at 570.

If nothing else, Lloyd signaled that the rights of property owners would not be mechanically downplayed in favor of asserted speech rights.

Four years later, the Supreme Court in Hudgens v. NLRB (1976) overruled Logan Valley and found that shopping centers were not the functional equivalent of company towns.38

Hudgens v. NLRB, 424 U.S. 507 (1976).

Thus, a mall could ban labor picketing directed against an individual business located in the center. The Hudgens decision made clear that the First Amendment conferred no protection on expressive activities in shopping centers when the owners objected. The Supreme Court has not revisited this issue. Lower federal courts have consistently ruled that private shopping malls are not subject to the First Amendment.39

Southwest Community Resources, Inc. v. Simon Property Group, L.P, 108 F. Supp. 2d 1239 (D. New Mexico 2000)

Application of the public forum doctrine to private property in the federal courts has been steadily shrinking since the 1970s. Marsh has become an isolated precedent, limited to the largely obsolete company town. One leading scholar, William Van Alstyne, saw this development as reinvigorating the historical connection between rights of property ownership and other basic civil liberties.40

William W. Van Alstyne, “The Recrudescence of Property Rights As the Foremost Principle of Civil Liberties: The First Decade of the Burger Court,” Law and Contemporary Problems 43 (1980): 66–82.

The decisions upholding the right to exclude in the shopping center context also portended a series of Supreme Court decisions strengthening the Takings Clause of the Fifth Amendment. The Fifth Amendment provides in part, “nor shall private property be taken for public use, without just compensation.” This clause clearly prevents outright confiscation of property by the government. In Loretto v. Teleprompter Manhattan CATV Corp. (1982), the Supreme Court ruled that any governmentally authorized permanent physical occupation of property constituted a taking for which compensation must be paid.41

458 U.S. 419 (1982).

The Court also began to put some teeth into the regulatory takings doctrine, which recognizes that a land use regulation might be so severe as to effectuate a taking of property. In Lucas v. South Carolina Coastal Council (1992), for example, the Court held that land use controls that deprive a landowner of all economically viable use of his property amount to a taking.42

505 U.S. 1003 (1992).

Denied First Amendment protection as a result of cases such as Lloyd and Hudgens, those seeking to exercise free speech rights in privately owned shopping centers turned to the state courts. They hoped to secure rulings that state constitutions secured broader speech rights of visitors on private property than those afforded by the federal Constitution. This strategy paid a handsome dividend in 1979 when the California Supreme Court, by a 4–3 vote, held that the state constitution safeguarded speech and petitioning in privately owned malls.43

Robins v. PruneYard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341 (1979).

The majority stressed the growing importance of shopping centers in American life. The dissenters correctly pointed out that the majority “relegates the private property rights of the shopping center owner to a secondary, disfavored, and subservient position vis-a-vis” free speech claims.44

Id., 23 Cal. 3d at 911, 592 P.2d at 348.

The dissenters maintained that the Court's ruling in effect constituted a taking of a valuable property right in violation of the federal Constitution.

In PruneYard Shopping Center v. Robins (1980), the U.S. Supreme Court, in an opinion by then-Justice Rehnquist, affirmed the California decision, declaring that state courts were free to give more expansive protection to free speech rights than that afforded by the federal Constitution.45

447 U.S. 74 (1980).

Although recognizing that the California Supreme Court's interpretation of the state constitution destroyed the right to exclude others, the U.S. Supreme Court nonetheless concluded that this did not amount to a taking of the center owner's property. The Court stressed that the exercise of expressive rights in the shopping center did not impair the commercial use of the property.

Rehnquist's opinion in PruneYard is problematic on two points.46

For a thoughtful critique of the PruneYard decision, see Richard A. Epstein, “Takings, Exclusivity, and Speech: The Legacy of PruneYard v. Robins,” University of Chicago Law Review 64 (1997): 21–69.

First, since the decision converted the shopping center into a kind of commons, it is difficult to square with Rehnquist's stress on the essential character of the right to exclude in other contexts. Second, the decision is inconsistent with the language in Lloyd describing private property as one of the “fundamental rights of a free society.” If California courts felt that robust protection of free speech necessitated public entry into malls, the logic of Lloyd would indicate that a taking of a property right had occurred. Rehnquist endeavored to escape this dilemma by invoking the notion of property-owner consent, but this argument ultimately falls flat. The owners of shopping centers could invite the public for a specific purpose— that is, retail shopping—without extending a blanket invitation to all to enter for any purpose. Consent, moreover, as in PruneYard itself, can be expressly revoked.47

It is a hornbook rule that a license to enter the property of another is revocable for any reason. See State v. Wicklund, 589 N.W.2d 793, 802 (Minn. 1999) (“While the public is invited to many privately-owned places to shop, dine, or be entertained, the invitation creates only a license which may be revoked”); Mosher v. Cook United, Inc., 62 Ohio St. 2d 316, 405 N.E.2d 720 (1980) (license of customer to enter grocery store revoked).

Rehnquist's puzzling PruneYard opinion can best be explained as an expression of his deep concern for state autonomy in the federal system. Political scientist Sue Davis has observed that the opinion “provides perhaps the clearest illustration of the value he [Rehnquist] places on federalism over property rights.”48

Sue Davis, Justice Rehnquist and the Constitution (Princeton, NJ: Princeton University Press, 1989), 121.

Whatever the shortcomings of PruneYard, it opened the door for a new round of litigation in state courts over expressive rights in shopping centers.49

Kevin Francis O'Neill, “The Regulation of Public Protest: Picketing, Parades, and Demonstrations,” in Daniel R. Mandelker and Rebecca L. Rubin, eds., Protecting Free Speech and Expression: The First Amendment and Land Use Law (Chicago, IL: American Bar Association, 2001), 253–55.

These cases focused on the protection given free speech under state constitutions. Such provisions in state constitutions vary widely. Some emulate the wording of the First Amendment, but others contain broader language that could be read to confer an affirmative right to speech. Two examples are instructive:

1. New Hampshire Constitution, Part 1, Article 22:

Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.

2. Ohio Constitution, Article 1, Section 11:

Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.

Such language is ambiguous as to whether the state free speech clause protects the exercise of speech rights against interference by private parties as well as by government.

Litigation in the state courts about access to privately owned malls has produced decidedly mixed results. A few jurisdictions, including Colorado,50

Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991).

Massachusetts,51

Batchelder v. Allied Stores International, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983) (holding only that persons had constitutional right to solicit signatures for a candidate's ballot application in the common areas of a mall, and declining to consider broader question of free speech rights in shopping centers).

and New Jersey, have followed the lead of California. The decision of the Supreme Court of New Jersey, in New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp. (1994), rendered by a 4–3 vote, is particularly noteworthy for its dismissive attitude toward the rights of property owners.52

New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 650 A.2d 757 (1994). For a critical analysis of New Jersey Coalition, see Stanley H. Friedelbaum, “Private Property, Public Property: Shopping Centers and Expressive Freedom in the States,” Albany Law Review 62 (1999): 1252–62 (“That private property rights in the historic sense have been substantially impaired in the surge of a few activist state courts to expand the role of shopping centers is difficult to refute.”).

The majority opinion took “judicial notice of the fact” that downtown business districts have declined since 1950, and that such decline has been accompanied by the emergence of regional malls.53

New Jersey Coalition, 138 N.J. at 344–47, 650 A.2d at 767–68.

The majority concluded that the New Jersey Constitution's guarantee of free speech was broader than the First Amendment's, and protected speech from both governmental abridgement and restrictive conduct by private entities.54

138 N.J. at 352–54, 650 A.2d at 770–71.

It characterized the mall's invitation to the public as one embracing a variety of activities, and not limited to retail shopping.55

138 N.J. at 357–59, 650 A.2d at 772–73.

In a strongly worded dissent, three judges accused the majority of disregarding the private property provisions of the state constitution and insisted that the primary purpose of shopping centers was retail trade, not communication.

The overwhelming majority of state courts, however, have declined to adopt free speech rights more extensive than the First Amendment's in cases involving malls. Most state courts have concluded that their constitutional free speech provisions, like the First Amendment, reach only state action and do not control the conduct of private parties who curtail expressive activity on their own land. Courts in New York56

SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 488 N.E.2d 1211 (1985) (declaring that the decision of the California Supreme Court in PruneYard “is hardly persuasive authority”).

and Michigan,57

Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337 (1985).

for example, have held that state free speech guarantees are limited to state action, and that shopping centers are not functionally equivalent to municipalities. Nor have most state courts been persuaded to construe state constitutional language as creating an affirmative right to exercise free speech upon private property.58

See, e.g., Cologne v. Westfarms Associates, 192 Conn. 48, 469 A. 2d 1201 (1984); State v. Wicklund, 589 N.W.2d 793 (Minn. 1999).

Instead, despite different phraseology, they have found that state free speech protection is coextensive with that of the First Amendment.

Even those state courts that initially upheld the exercise of expressive activity on private property have begun whittling back the breadth of this right. In 1999, a California court refused to extend the public forum doctrine to a freestanding retail store with an abutting parking lot. The court reasoned that even a large single store is not the equivalent of a shopping center and that, therefore, the store's “interest in maintaining exclusive control over its private property is stronger than the interest of a shopping mall owner.”59

Trader Joe's Company v. Progressive Campaigns, Inc., 73 Cal. App. 4th 425, 433; 86 Cal. Rptr. 2d 442 (1999).

More recently, another California court ruled that a large supermarket did not invite the public for noncommercial purposes and could prevent the solicitation of signatures for initiative petitions on its premises.60

Waremart, Inc. v. Progressive Campaigns, Inc., 85 Cal. App. 4th 679, 102 Cal. Rptr. 2d 392 (2000), rev'd dismissed, 119 Cal. Rptr. 2d 697, 45 P.3d 1161 (Cal. 2002).

Similarly, the Supreme Court of Washington curtailed the reach of free speech rights in shopping centers: reversing an earlier decision, the court declared that the state constitution does not afford a right to demonstrate or distribute literature at a mall.61

Southcenter Joint Venture v. National Democratic Policy Committee, 113 Wash. 2d 413, 780 P.2d 1282 (1989) (distinguishing and limiting Alderwood Associates v. Washington Environmental Council, 96 Wash. 2d 230, 635 P.2d 108 [1981]).

Equally striking was the decision of the Supreme Court of Oregon in Stranahan v. Fred Meyer, Inc. (2000), holding that the state constitution did not confer a right to solicit signatures in a shopping center for a ballot initiative.62

331 Or. 38, 11 P.3d 228 (2000).

In reaching this result, the Oregon court reversed an earlier, contrary decision. The upshot of these developments is that, at the present, only California, Colorado, and New Jersey apparently recognize broad expressive rights in privately owned malls (and even California, as noted above, has begun paring back these rights).

V. Concerns of Mall Owners

Since most legal commentators have endorsed the view that courts should recognize free speech rights in shopping centers,63

See, e.g., Curtis J. Berger, “PruneYard Revisited: Political Activity on Private Lands,” New York University Law Review 66 (1991): 651–52 (declaring that “a state's interest in promoting political expression in … public places may … override the values associated with private ownership”); Jennifer Niles Coffin, “The United Mall of America: Free Speech, State Constitutions, and the Growing Fortress of Private Property,” University of Michigan Journal of Law Reform 33 (2000): 615–49.

it is useful to consider the objections raised by mall owners to such activity. The owners present several practical and jurisprudential arguments: opening of shopping centers to groups advocating controversial political and social views creates burdens that private owners are ill equipped to handle; enforcement of time, place, and manner restrictions on free speech poses difficult questions and will likely involve owners in litigation; advocacy groups may well offend employees and shoppers, thereby directly hampering commercial activity; distribution of leaflets commonly results in litter that the owners must remove; increased security will be expensive, and the costs will ultimately be passed along to consumers; and in the present litigious climate, mall owners may be subject to tort claims if the exercise of free speech by advocacy groups results in altercations or personal injuries to patrons.

In addition, mall owners contend that their First Amendment rights are violated when they are compelled to furnish a forum for the views of others. There are two prongs to this argument. First, despite any disclaimers, shopping centers may be identified with the contested views of advocacy groups. Second, mall owners are, in effect, being forced to subsidize the expression of opinions with which they may disagree.64

Epstein, “Takings, Exclusivity, and Speech,” supra note 46, at 50–52.

There is support for the proposition that compelling a corporation to provide a forum for the views of others impairs the company's free speech rights. At issue in Pacific Gas & Electric Company v. Public Utilities Commission of California (1986) was a state commission's order directing a utility company to include messages in its billing envelopes from a consumer group that differed with the utility's attitude toward regulatory policy.65

475 U.S. 1 (1986).

Justice Lewis Powell, writing for a plurality of the Supreme Court, determined that the order abridged the utility's rights under the First Amendment. He insisted that a private party cannot be forced to spread a message with which it disagrees. “That kind of forced response,” Powell wrote, “is antithetical to the free discussion that the First Amendment seeks to foster.”66

Id. at 16. See also Wooley v. Maynard, 430 U.S. 705 (1977) (state cannot compel individual to disseminate a message on automobile license he finds objectionable); Keller v. State Bar of California, 496 U.S. 1 (1990) (use of compulsory dues by state bar association to finance political activities with which some members disagree violated their First Amendment rights); Michigan Park Producers Ass'n v. Veneman, 348 F.3d 157 (6th Cir. 2003) (mandatory assessment on pork producers to fund promotion of pork violates First Amendment guarantee against compelled speech).

Not only was there a danger that compelled access might cause the company to change its own message, but also, he pointed out, the company was being required to use its property to spread someone else's views. Hence, the order impermissibly burdened the expression of the utility's views. Although Powell sought to distinguish PruneYard,67

Pacific Gas, 475 U.S. at 12. Dissenting, Justice Rehnquist maintained that the right of access in this case was indistinguishable from PruneYard. Id. at 26.

mall owners might well object to the content of speeches and pamphlets on their land.68

See generally Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wash. 2d 623, 641, 989 P.2d 524, 533 (1999) (noting but not addressing store's “contentions that forcing it to allow Progressive to solicit signatures for an initiative on its private property would violate its First Amendment rights”).

It would seem that the same rules should apply. Indeed, legal scholar Richard Epstein has asserted: “Covert subsidies, such as those involved in PruneYard, are an enemy to freedom of speech every bit as much as explicit taxes or oppressive regulations.”69

Epstein, “Takings, Exclusivity and Speech,” supra note 46, at 52.

It is as offensive to commandeer my property as to compel a financial contribution from me to advance opinions that I do not share.

An allied issue is presented by recent litigation over the constitutionality of Interest on Lawyers' Trust Account (IOLTA) programs adopted by most state supreme courts. Lawyers' trust accounts are used for the temporary deposit of clients' funds, and state courts have appropriated the interest on these accounts to pay for legal services for indigents, a practice that has been challenged. Much of the debate has centered on whether the clients of attorneys have a property interest in IOLTA income, and whether such schemes amount to a taking of this property in violation of the Fifth Amendment.70

Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (holding that the interest generated by funds in IOLTA accounts is the property of the owner of the principal on deposit); Brown v. Legal Foundation of Washington, 123 S. Ct. 1406 (2003) (assuming that interest on IOLTA accounts represented private property ultimately taken for public use, but concluding that owners suffered no pecuniary loss and were therefore not entitled to compensation under the Fifth Amendment).

But it has also been argued that the use of IOLTA revenue to fund controversial advocacy by legal aid attorneys violates the First Amendment rights of IOLTA clients. Complainants allege that they are being forced to support speech that they find objectionable.71

Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 94 F.3d 996, 999 (5th Cir. 1996).

VI. Accommodation of Rights

Compelling policy considerations as well as the decided weight of judicial authority make clear that, under most circumstances, shopping center owners should retain the right to prevent the exercise of expressive activity by visitors on their premises. Such a conclusion, of course, is simply a reaffirmation of the traditional doctrine that the right to exclude is a fundamental aspect of the constitutional right to own and enjoy private property.

The Constitution and Bill of Rights, however, seek to safeguard a number of fundamental values. Neither the rights of property owners nor any other constitutional rights can be enjoyed without any restraint. Competing interests must sometimes be reconciled. Therefore, despite the importance of the right to exclude, I would contend that in a few situations the societal interest in fostering free speech outweighs the right of private property owners to maintain control of their premises. As discussed below, these exceptions are unlikely to apply to shopping centers.

A. Viewpoint discrimination

Property owners who invite the public to enter their premises must have and enforce a consistent policy. They should not be able to differentiate between persons seeking access to speak or distribute literature based on their political or social views. In this connection, it is noteworthy that courts upholding a mall owner's right to exclude have frequently emphasized that the owner was applying an evenhanded policy.72

Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 194; 378 N.W.2d 337, 339 (1985) (observing that mall “maintains a strict written trespass policy prohibiting any activity in the shopping center that is not directly related to the enhancement of commercial retail sales”); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 498; 488 N.E.2d 1211, 1212 (1985) (mall “has consistently and nondiscriminatorily prohibited all leafletting, and all types of political activities or gatherings”); Charleston Joint Venture v. McPherson, 308 S.C. 145, 151; 417 S.E.2d 544, 548 (1992) (mall policy was “to exclude any type of overtly political or religious activity, and all forms of solicitation and handbilling”).

Viewpoint discrimination would raise the specter of private censorship, and courts might well be less willing to vindicate the right to exclude under these circumstances.73

See Laguna Publishing Company v. Golden Rain Foundation, 131 Cal. App. 3d 816, 182 Cal. Rptr. 813 (1982) (private residential community required “to act fairly and without discrimination toward others in the exercise of their state constitutional rights of free speech and free press”). See also Guttenberg Taxpayers and Rentpayers Association v. Galaxy Towers Condominium Association, 297 N.J. Super. 404, 688 A.2d 156 (1996) (condominium association that endorsed local political candidates became “in essence a political ‘company town’ ” and could not bar distribution of campaign literature by other candidates).

For example, an owner should not be able to permit pro-life groups to exercise expressive rights while excluding pro-choice groups. As a practical matter, shopping center owners would almost surely decide to exclude all speech-related activity by visitors.

A mall owner, however, does not forfeit his or her own right of free speech. People are entitled to use their own resources to advance their views. The exercise of this right by mall owners (for example, by posting a sign) should not impair the ability of owners to exclude others who wish to engage in expressive activities so long as this is done on a nondiscriminatory basis. In contrast, the owner of a private home would be under no such limitation. Homes are not typically open to the general public. Not only can homeowners express their personal views on any topic, but they are free to encourage the expression of some opinions while excluding persons who seek to express contrary views. In other words, homeowners should be under no obligation to be evenhanded in allowing others to engage in expressive activity on their premises.

B. Isolated groups

Where a group is isolated, on someone else's property, from the larger community and from the usual means of communication, it may be appropriate for courts to breach the owner's dominion. Thus, the New Jersey Supreme Court ruled that representatives of governmental and welfare agencies had a limited right to enter a farm in order to offer services to migrant farmers.74

State v. Shack, 58 N.J. 297, 277 A.2d 369 (1971) (decided on the basis of state property law and not addressing a First Amendment claim).

This result could be analogized to the common law doctrine of necessity, which justified entries onto an owner's land to deal with unusual circumstances, such as stopping the spread of fire, preventing crime, or saving lives. Public officials are also entitled to enter private land to perform their duties.75

A. James Casner, ed., American Law of Property: A Treatise on the Law of Property in the United States, vol. 6A, § 28.10 (Boston, MA: Little, Brown and Company, 1954), 31–34; and David A. Thomas, ed., Thompson on Real Property (Charlottesville, VA: Michie Company, 1994), 205.

But such narrow privileges to intrude upon private land would seem inapplicable to shopping centers. The middle class patrons of malls are neither isolated from their communities nor cut off from other means of communication.

C. Adequate alternative forums

Courts should be especially reluctant to override an owner's right to exclude where there are adequate alternative avenues of communication. Often, of course, public streets and parks are available for expressive activity. Moreover, in the age of the telephone and the Internet, other means of disseminating a message are widely available. The mere fact that it might be convenient for groups to engage in speech-related activity on private property does not justify ignoring the constitutional rights of owners.76

An instructive case in this regard is Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992), which held that an employer did not commit an unfair labor practice by barring nonemployee union organizers from its property. The Supreme Court reasoned that the employees were accessible to union contact by signs, mailings, phone calls, and picketing. It concluded that an employer need not accommodate nonemployee union organizers on its property unless the employees are isolated from the ordinary flow of information.

VII. Other Access Issues

Although most of the litigation and commentary has focused on free speech in shopping centers, similar issues have been presented with respect to other privately owned facilities. Even state courts that have upheld expressive activities in malls have confined application of the public forum doctrine to property open to the general public. Absent such a public character, courts have allowed landowners to ban the exercise of speech rights. For example, in Golden Gateway Center v. Golden Gateway Tenants Association (2001), a divided Supreme Court of California ruled that an apartment complex was not the functional equivalent of a traditional public forum.77

26 Cal. 4th 1013, 29 P.3d 797 (2001) (the majority opinion also noted considerable criticism of the PruneYard decision and indicated some doubt whether the same result would be reached if the issue were being presented for the first time).

It followed that the apartment complex could halt the distribution of leaflets within the building by a tenants' association without a specific tenant request. Moreover, in another California case, a medical center was deemed private in character rather than a public forum.78

See, e.g., Allred v. Harris, 14 Cal. App. 4th 1386, 18 Cal. Rptr. 2d 530 (1993).

A new challenge to the exercise of free speech rights was posed by the growth of private residential communities during the late twentieth century.79

See generally Sheryll D. Cashin, “Privatized Communities and the ‘Secession of the Successful’: Democracy and Fairness Beyond the Gate,” Fordham Urban Law Journal 28 (2001): 1675–92; and Paula A. Franzese, “Does It Take A Village? Privatization, Patterns of Restrictiveness and the Demise of Community,” Villanova Law Review 47 (2002): 553–93.

Such communities commonly collect fees and provide a variety of services, including road maintenance, landscaping, garbage collection, and recreational facilities. Access to these communities is typically restricted to residents and guests, and this policy is sometimes policed by private guards. Residential community associations also enforce comprehensive land use regulations in the form of ‘real covenants’, which are contractual arrangements that attach to the land and bind future owners’ land. Indeed, these associations have assumed many of the functions traditionally associated with local government. A primary motivation to join a residential community is the desire for enhanced privacy and security.

The covenant regimes of these privatized communities regulate a wide range of behavior by residents, and many of the restrictions implicate First Amendment freedoms. For example, these communities may regulate the posting of signs, curtail public assembly on community streets, and ban the unsolicited distribution of newspapers.80

Steven Siegel, “The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v. Alabama,” William and Mary Bill of Rights Journal 6 (1998): 469–71.

Homeowners have objected to covenants that prohibit them from displaying American flags, and as a result, a number of states have enacted legislation that bans such prohibitions.81

See, e.g., Ariz. Rev. Stat. §§ 33-1261, 32-1804 (Supp. 2002); 2002 Fla. Laws ch. 2002-50; S.C. Code Ann. § 27-1-60 (Supp. 2002).

In addition, dominion over the streets allows residential communities to prevent their use for speech-related activities by nonresidents.82

Note, “Residential Associations As State Actors: Regulating the Impact of Gated Communities on Nonmembers,” Yale Law Journal 105 (1995): 771–73.

At first glance, residential community associations seem close to the type of company town treated as a public forum in Marsh. Yet there are significant differences. Unlike the company town in Marsh, residential communities do not contain a business district and their streets are not open to public use. Company towns typically contained employees highly dependent on the company for jobs, while modern residential communities cater to affluent individuals who have ready access to numerous expressive venues. Moreover, community residents are generally deemed to have consented to the covenant restrictions when they purchased a home in the community.83

Laguna Publishing Company v. Golden Rain Foundation, 131 Cal. App. 3d 816, 836; 182 Cal. Rptr. 813, 824–25, (1982) (rejecting argument that private residential community should be likened to company town).

Nonetheless, one commentator has argued that privatization of local government threatens constitutional liberties and that residential associations should be viewed as state actors.84

Siegel, “The Constitution and Private Government,” supra note 80, at 461–563; Note, “Residential Associations As State Actors,” supra note 82, at 778–93.

There is as yet little litigation testing the regulatory schemes in private resident communities. It seems likely, however, that the stage is set for another round of adjustments between the rights of property owners and the enjoyment of expressive rights.85

Laguna Publishing Company, 131 Cal. App. 3d at 839, 182 Cal. Rptr. at 826 (1982) (observing that “the gated and walled community is a new phenomenon on the social scene”). See also David L. Callies, Paula A. Franzese, Heidi Kai Guth, “Ramapo Looking Forward: Gated Communities, Covenants, and Concerns,” The Urban Lawyer 35, no. 1 (2003): 192–94.

VIII. Conclusion

America's traditional constitutional strictures were designed to protect liberty by restricting the power of government. To this end, the rights of property owners and the right of free speech usually work in tandem. Clearly, the framers of the Constitution and Bill of Rights did not perceive a fundamental conflict between them. There is no artificial divide between speech and property, and both are essential to a free society. Moreover, as a practical matter, secure property rights make possible the meaningful communication of ideas. Some private resources are essential for robust political dialogue.

Admittedly, the existence of private property may in some situations influence and even curtail the exercise of expressive rights. The courts must necessarily police the tension that arises at the border between property and speech. But there is no constitutional warrant for mechanically preferring one set of rights over the other as the New Deal consensus preferred speech to property. Indeed, at a time when some on the political Left seem as disenchanted with free speech as the Old Left was with property rights,86

McGinnis, “The Once and Future Property-Based Vision of the First Amendment,” supra note 15, at 55–56; and Steven Shiffrin, “The Politics of the Mass Media and the Free Speech Principle,” Indiana Law Journal 69 (1994): 689–92 (discussing criticism by liberal scholars of free speech as a bulwark for the powerful).

it may be a propitious moment to rediscover the conservative libertarian tradition.

Footnotes

I wish to acknowledge the helpful research assistance of Catheryne E. Pully.