Returning to the PruneYard: the unconstitutionality of state-sanctioned trespass in the name of speech.

• Author: Sisk, Gregory C.

In PruneYard Shopping Center v. Robins, (1) the United States Supreme Court held that the owner of a private shopping center who was required by a state court to grant political solicitation and speaking rights to strangers had thereby suffered neither a constitutional taking of private property without compensation under the Fifth Amendment nor a deprivation of the owner's own free speech rights under the First Amendment. Revisiting this subject more than a quarter-century later, this Essay argues that the PruneYard decision never should have been read as an open invitation to the states to impose constitutional obligations upon private landowners regardless of the offensiveness of the speech being expressed over the owner's objection or the permanence and breadth of the government-commandeered access to the property. Moreover, the Supreme Court's decisions over the past quarter-century confirm that imposing a permanent and continuous free-speech easement on private property is a taking for which compensation is due. A judicially created right of trespass in the name of free speech cannot be squared with federal constitutional protections of expressive autonomy and private property.

1. INTRODUCTION AND BACKGROUND

   Nearly thirty years ago, the California judiciary construed its state constitution's "liberty of speech" clause to require certain private citizens to allow strangers access to private property as a venue for expressing political opinions. In Robins v. Pruneyard Shopping Center, a bare 4-3 majority of the California Supreme Court held that a group soliciting signatures for a political petition had a state constitutional right to do so in the common areas of the privately owned PruneYard Shopping Center, despite the center's uniform policy prohibiting solicitation inside the mall. (2) The court rendered this decision, which found no support in the text, structure, or drafting history of the California Constitution, (3) "during the closing days of an era of an expansionist and free-wheeling approach to constitutional interpretation." (4)

   As a radical departure from the Lockean concept of rights as a check on government power, the California Pruneyard decision has found few admirers among the courts. The United States Supreme Court long since confirmed that it is "commonplace that the [federal] constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state." (5) Likewise, a substantial majority of states (6) have adhered to the traditional understanding that constitutional rights limit the government's power to interfere with our freedoms; they do not disturb the freedom of private citizens. (7) Thus, nearly every state supreme court to address the matter has refused to convert the shield of state constitutional rights against government power into a sword that one private citizen could wield against another. (8)

   New Jersey, however, not only has followed California in enforcing state constitutional duties to facilitate speech against private landowners (9) but has become "a much more zealous disciple than the teacher." (10) Ranging well beyond the large shopping center context, New Jersey has aggressively extended the judicially created right of constitutional trespass in the name of free speech to private universities, (11) private residential communities, (12) and even the corridors of privately owned residential buildings. (13)

   As recently as 2007, the California Supreme Court in Fashion Valley Mall LLC v. National Labor Relations Board (14) declined the invitation to overrule Pruneyard (by the same single-vote margin as in the original decision). A few years earlier, a plurality of the court had acknowledged the severe criticism of the Pruneyard decision, recognizing that most other states had rejected it and that it had no basis in the text, history, or structure of the California Constitution. (15) In Fashion Valley Mall, however, a majority of the California Supreme Court recited the Pruneyard line of cases, without adding to or reevaluating the abbreviated Pruneyard reasoning. The court restated that "[a] shopping mall is a public forum in which persons may reasonably exercise their right to free speech guaranteed by article I, section 2 of the California Constitution." (16) Three justices dissented, arguing that "Pruneyard was wrong when decided" and that "jurisdictions throughout the nation have overwhelmingly rejected it." (17) The dissent urged that "[t]he time has come to recognize that we are virtually alone, and that Pruneyard was ill-conceived." (18)

   Thus, although generally discredited as an anachronistic vestige of an activist period in constitutional jurisprudence, the Pruneyard decision staggers forward into the new century. In California and New Jersey, which represent nearly fifteen percent of the nation's population, a judicially invented liberty of speech right to occupy another's private property persists. Moreover, whenever someone advocates "transport[ing] constitutional norms into the private sector," (19) the Pruneyard decision remains as "a jurisprudential attractive nuisance for deformed constitutional interpretation." (20)

   Unfortunately, when the United States Supreme Court first addressed the issue of state appropriation of private property as a political speech easement nearly three decades ago, it failed to nip the scheme in the bud. Instead, the Court ruled that California's state constitutional edict was within the permissible range of state police power to regulate private property, at least in the particular circumstances of that case.

   In PruneYard Shopping Center v. Robins, (21) the Supreme Court reaffirmed its precedents refusing to enforce federal constitutional rights against private entities. (22) The Court reiterated that "property does not 'lose its private character merely because the public is generally invited to use it for designated purposes,' and that '[t]he 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.'" (23) The PruneYard Court nonetheless acknowledged "the authority of [California] 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," including adopting "reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision." (24) On the particular facts of the case, the Court rejected claims that there had been a constitutional taking of the shopping center owner's property without compensation in violation of the Fifth and Fourteenth Amendments. (25) The Court also found that requiring the owner to facilitate the expressions of others did not violate the owner's First and Fourteenth Amendment free speech rights. (26)

   The Supreme Court's PruneYard decision should not be misread to invite the states to impose constitutional obligations upon private landowners, regardless of the speech's offensiveness or the permanence and breadth of the involuntary access to the property. (27) Moreover, as free speech and takings jurisprudence has matured during the past twenty-five years, the constitutional legitimacy of state-sanctioned trespass in the name of speech has become increasingly difficult to sustain. (28) In the critical light of subsequent developments, the time has come to renew the expressive and private property rights of landowners against intrusions by others.

2. FORCING PRIVATE LANDOWNERS TO BE INSTRUMENTS FOR OFFENSIVE EXPRESSION INFRINGES FREE SPEECH RIGHTS

   Although ignored by the California Supreme Court, (29) private landowners suffer a loss of their free speech rights when forced to open their doors to controversial social or political expression, including opinions that they--or, in the case of commercial enterprises, their customers--may find offensive. As Justice Powell said in his concurring opinion in PruneYard, "[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." (30)

   Although the Supreme Court did not find that California's imposition of state constitutional duties upon a shopping center owner transgressed the First Amendment, the particular owner in that case had not specifically objected to the message being presented. (31) In subsequent First Amendment decisions, the Supreme Court has emphasized that the absence of an objection by the shopping center owner in PruneYard was crucial to understanding the limited scope of that decision. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., (32) the Court noted that, because the mall owner in PruneYard never alleged offense, the distribution of pamphlets did not threaten the principle of speaker's autonomy. (33) Likewise, in Pacific Gas & Electric Co. v. Public Utilities Commission, (34) a plurality observed that "[n]otably absent from PruneYard was any concern that [requiring] access" to the shopping center for others to speak had negatively affected the owner's own right to speak. (35) Accordingly, the decision was never "a blanket approval for state efforts to transform privately owned commercial property into public forums." (36)

   Moreover, the Supreme Court has reinforced the First Amendment guarantee against forcing one citizen to accommodate the divergent viewpoint of another, even in the context of public activities. In Hurley, the Court unanimously held that a Massachusetts state court decision violated the First Amendment by requiring the private organizers of Boston's St. Patrick's Day parade to allow a gay rights organization to...