The previous post, posted here and on the YAL blog, generated an interesting discussion over California’s approach to balancing free-speech and property rights. One notable point made in the comments thread involved the case of Pruneyard Shopping Center v. Robins (1980).
In that case, the U.S. Supreme Court ruled that states could extend rights beyond that of the U.S. Constitution so long as doing so does not violate rights protected by the Constitution. The case dealt with the California Supreme Court ruling that their constitution’s protection of free speech allowed for individuals to exercise their free-speech rights in a private shopping mall, despite the wishes of the mall owners. The U.S. Supreme Court agreed with the California Supreme Court that this did not violate the mall owner’s property rights under the fifth and fourteenth amendments.
Legally, such a situation is allowed under the current precedent. In California, individual speech rights apparently can trump property rights in certain cases, with some exceptions (example). It’s in a way similar to the “public accommodation” approach in U.S. law that forbids businesses from not serving customers based on race. It transforms private property into something more — a public space.
The question then becomes whether this is an appropriate balance struck between these two rights. The framers of the U.S. Constitution would have likely thought it not to be. The wording of the First Amendment was clear that it was government that was the enemy of free speech, not private individuals exercising the right to use their property as they saw fit. The First Amendment’s wording stated that “Congress” should make no law, it did not forbid private individuals from prohibiting others to use their property for such speech. The California Constitution contains wording allowing a more expansive interpretation:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
The founding fathers were very attuned to the importance of private property rights. Under a system where property rights prevailed, the owners of shopping malls could cater to their customers’ preferences by choosing to allow or not allow controversial political or religious speech. Those supportive of such speech while they are shopping could voice their support by frequenting malls that allow the speech and avoiding those that do not. Similarly, those opposed could also vote with their feet.
But, under the California system, that choice is denied to individuals. Not having that choice has naturally led to frustration from mall owners and many of their customers.