Argued March 18, 1980.
Decided June 9, 1980.
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.
after appellees had begun soliciting in appellant privately owned shopping
center's central courtyard for signatures from passersby for petitions in
opposition to a United Nations resolution, a security guard informed
appellees that they would have to leave because their activity violated
shopping center regulations prohibiting any visitor or tenant from
engaging in any publicly expressive activity that is not directly related
to the center's commercial purposes.
Appellees immediately left the premises and later filed suit in a
California state court to enjoin the shopping center and its owner (also
an appellant) from denying appellees access to the center for the purpose
of circulating their petitions.
The trial court held that appellees were not entitled under either
the Federal or California Constitution to exercise their asserted rights
on the shopping center property, and the California Court of Appeal
California Supreme Court reversed, holding that the California
Constitution protects speech and petitioning, reasonably exercised, in
shopping centers even when the center is privately owned, and that such
result does not infringe appellants' property rights protected by the
This case is properly before this Court as an appeal under 28 U.S.C. §
1257(2). A state
constitutional provision is a "statute" within the meaning of §
1257(2), and in deciding that the State Constitution gave appellees the
right to solicit signatures on appellants' property, the California
Supreme Court rejected appellants' claim that recognition of such a right
violated their "right to exclude others," a fundamental
component of their federally protected property rights.
State constitutional provisions, as construed to permit individuals
reasonably to exercise free speech and petition rights on the property of
a privately owned shopping center to which the public is invited, do not
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. Pp.
The reasoning in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33
L.Ed.2d 131 -- which 75
held that the First Amendment does not prevent a private shopping center
owner from prohibiting the distribution on center premises of handbills
unrelated to the center's operations -- does not ex proprio
vigore limit a State's authority to exercise it police power or its
sovereign right to adopt in its own constitution individual liberties more
expansive than those conferred by the Federal Constitution.
And a State, in the exercise of its police power, may adopt
reasonable restrictions on private property so long as the restrictions do
not amount to taking without just compensation or contravene any other
federal constitutional provision.
The requirement that appellants permit appellees to exercise state-
protected rights of free expression and petition on shopping center
property does not amount to an unconstitutional infringement of
appellants' property rights under the Taking Clause of the Fifth
Amendment, appellants, having failed to demonstrate that the "right
to exclude others" is so essential to the use or economic value of
their property that the
state-authorized limitation of it amounted to a "taking."
Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62
L.Ed.2d 332, distinguished. And
there is no merit to appellants' argument that they have been denied
property without due process of law, where they have failed to show that
the due process test whereby the challenged law must not be unreasonable,
arbitrary, or capricious and the means selected must have a real and
substantial relation to the objective to be obtained, is not satisfied by
the State's asserted interest in promoting more expansive rights of free
speech and petition than conferred by the Federal Constitution.
Nor have appellants' First Amendment rights been infringed by the
California Supreme Court's decision.
The shopping center by choice of its owner is not limited to the
personal use of appellants, and 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. Furthermore, no
specific message is dictated by the State to be displayed on appellants'
property, and appellants are free to publicly dissociate themselves from
the views of the speakers or handbillers.
Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752;
West Virginia State Board of Education v. Barnette, 319 U.S. 624,
63 S.Ct. 1178, 87 L.Ed. 1628; and
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41
L.Ed.2d 730, distinguished. Pp.
Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, affirmed.
Max L. Gillam, Jr., Los Angeles, Cal., for appellants.
L. Hammer, San Jose, Cal., for appellees.
H. Stillman, Washington, D. C., for United States, as amicus curiae, by
special leave of Court.
Justice REHNQUIST delivered the opinion of the Court.
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
77 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
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.
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
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.
Superior Court held that appellees were not entitled under either the
Federal or California Constitution to exercise
78 their asserted rights on the shopping center property.
App. to Juris. Statement A-2.
It concluded that there were "adequate, effective channels of
communication for [appellees] other than soliciting on the private
property of the [PruneYard]." Id.
at A-3. The California Court of Appeal affirmed.
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."
23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 860, 592 P.2d 341, 347
(1979). It concluded
that appellees were entitled to conduct their activity on PruneYard
property. In rejecting
appellants' contention that such a result infringed property rights
protected by the Federal Constitution, the California Supreme Court
" '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 (see Diamond [v. Bland, 3 Cal.3d
653, 665, 91 Cal.Rptr. 501, 509, 477 P.2d 733, 741 (1970)]) would not
markedly dilute defendant's property rights.'
[Diamond v. Bland, 11 Cal.3d 331, 345, 113 Cal.Rptr. 468, 478, 521
P.2d 460, 470 (1974)] (dis. opn. of Mosk, J.).)"
Id., at 910-911, 153 Cal.Rptr., at 860-861, 592 P.2d,
The California Supreme Court thus expressly overruled its
earlier decision in Diamond v. Bland, 11 Cal.3d 331, 113 Cal.Rptr. 468,
521 P.2d 460 (Diamond II ), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42
L.Ed.2d 125 (1974), which had reached an opposite conclusion.
23 Cal.3d, at 79 910,
153 Cal.Rptr., at 860, 592 P.2d, at 347. [FN1]
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 postponed consideration of the question of jurisdiction until
the hearing of the case on the merits.
444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318.
We now affirm.
FN1. The California Supreme
Court in Diamond II had reasoned:
"In this case,
as in Lloyd [Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131
(1972)], plaintiffs have alternative, effective channels of communication,
for the customers and employees of the center may be solicited on any
public sidewalks, parks and streets adjacent to the Center and in the
communities in which such persons reside.
Unlike the situation in Marsh [v. Alabama, 326 U.S. 501, 66
S.Ct. 276, 90 L.Ed. 265 (1946)] and [Food Employees v. Logan Valley Plaza,
391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968)], no reason appears why
such alternative means of communication would be ineffective, and
plaintiffs concede that unlike Logan, their initiative petition bears no
particular relation to the shopping center, its individual stores or
patrons." 11 Cal.3d, at
335, 113 Cal.Rptr., at 471, 521 P.2d, at 463. Diamond II thus held that
the shopping center owner's property rights outweighed the rights of free
expression and petition asserted by the plaintiffs.
We initially conclude that this case is properly before us as an
appeal under 28 U.S.C. § 1257(2).
It has long been established that a state constitutional provision
is a "statute" within the meaning of § 1257(2).
See, e. g., Torcaso v. Watkins, 367 U.S. 488, 489, 81 S.Ct. 1680,
1681, 6 L.Ed.2d 982 (1961); Adamson
v. California, 332 U.S. 46, 48, n. 2, 67 S.Ct. 1672, 1673, n. 2, 91 L.Ed.
1903 (1947); Railway Express
Agency, Inc. v. Virginia, 282 U.S. 440, 51 S.Ct. 201, 75 L.Ed. 450 (1931). Here the California Supreme Court decided that Art. 1, §§ 2
and 3, of the California Constitution gave appellees the right to solicit
signatures on appellants' property in exercising their state rights of
free expression and petition. [FN2] In
so doing, the California Supreme Court
80 rejected appellants' claim that recognition of such a right
violated appellants' "right to exclude others," which is a
fundamental component of their federally protected property rights.
Appeal is thus the proper method of review.
Article 1, § 2, of the California Constitution provides:
"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."
Article 1, § 3, of the California Constitution provides:
"[P]eople have the right to
. . . petition
government for redress of grievances."
contend that Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33
L.Ed.2d 131 (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.
Id., at 552, 92 S.Ct., at 2221.
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. Id., at 555, 92 S.Ct., at 2222. [FN3] 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.
Id., at 564, 92 S.Ct., at 2226. [FN4]
81 In rejecting this claim we substantially repudiated the
rationale of Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct.
1601, 20 L.Ed.2d 603 (1968), which was later overruled in Hudgens v. NLRB,
424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (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 "[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." 407 U.S., at
569, 92 S.Ct., at 2229.
FN3. The center had banned handbilling because it "was
considered likely to annoy customers, to create litter, potentially to
create disorders, and generally to be incompatible with the purpose of the
Center and the atmosphere sought to be preserved."
407 U.S., at 555-556, 92 S.Ct., at 2222.
FN4. Respondents relied on Marsh v. Alabama, 326 U.S. 501, 66 S.Ct.
276, 90 L.Ed. 265 (1946), and Food Employees v. Logan Valley Plaza, 391
U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), in support of their claim
that the shopping center's permission to the public to enter its property
for the purpose of shopping caused its property to lose its private
character, thereby permitting members of the public to exercise the same
free speech rights as they would have on similar public facilities or the
streets of a city or town. Both
of those cases, however, involved no state law authorizing the conduct of
the solicitors or handbillers.
Our reasoning in
Lloyd, however, does not ex proprio vigore 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. Cooper
v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967).
See also 407 U.S., at 569-570, 92 S.Ct., at 2229.
In Lloyd, supra, there was no state constitutional or statutory
provision that had been construed to create rights to the use of private
property by strangers, comparable to those found to exist by the
California Supreme Court here. 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 amount to a taking without
just compensation or contravene any other federal constitutional
provision. See, e. g.,
Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303
(1926); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct.
2440, 49 L.Ed.2d 310 (1976). Lloyd
held that when a shopping center owner opens his private property to the
public for the purpose of shopping, the First Amendment to the United
States Constitution does not thereby create individual rights in
expression beyond those already existing under applicable law.
See also Hudgens v. NLRB, supra, at 517-521, 96 S.Ct., at
contend that a right to exclude others underlies the Fifth Amendment
guarantee against the taking of property without just compensation and the
Fourteenth Amendment guarantee against the deprivation of property without
due process of law. [FN5]
FN5. Appellants do not maintain that this is a condemnation case.
Reply Brief for Appellants 2. Rather,
they argue that "[t]he rights of a property owner
. . . are rooted in
the Fifth Amendment guarantee against the taking of property without just
compensation and are incorporated in the Fourteenth Amendment guarantee
against the deprivation of property without due process of law."
Brief for Appellants 10.
Here, of course, if the law required the conclusion that there was
a "taking," there was concededly no compensation, just or
otherwise, paid to appellants. This argument falls within appellants' contention that
Lloyd is controlling, see 407 U.S., at 567, 92 S.Ct., at 2228, and was
adequately presented below. See
New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73
L.Ed. 184 (1928).
It is true that one
of the essential sticks in the bundle of property rights is the right to
exclude others. Kaiser Aetna
v. United States, 444 U.S. 164, 179-180, 100 S.Ct. 383,
392-393, 62 L.Ed.2d 332 (1979).
And here there has literally been a "taking" of that
right to the extent that the California Supreme Court has interpreted the
State Constitution to entitle its citizens to exercise free expression and
petition rights on shopping center property. [FN6]
But it is well established that "not every destruction or
injury to property by governmental action has been held to be a 'taking'
in the constitutional sense." Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563,
1568, 4 L.Ed.2d 1554 (1960). Rather,
the determination whether a state law unlawfully infringes a landowner's
property in 83 violation of the
Taking Clause requires an examination of whether the restriction on
private property "forc[es] some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a
whole." Id., at 49, 80
S.Ct., at 1569. [FN7] This
examination entails inquiry into such factors as the character of the
governmental action, its economic impact, and its interference with
reasonable investment-backed expectations.
Kaiser Aetna v. United States, supra, at 175, 100 S.Ct., at 390.
When "regulation goes too far it will be recognized as a
Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322
FN6. The term "property" as used in the Taking Clause
includes the entire "group of rights inhering in the citizen's
States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311
(1945). It is not used in the
"vulgar and untechnical sense of the physical thing with respect to
which the citizen exercises rights recognized by law.
[Instead, it] denote[s] the group of rights inhering in the
citizen's relation to the physical thing, as the right to possess, use and
dispose of it. . . . The constitutional provision is addressed to every sort
of interest the citizen may possess."
Id., at 377-378, 65 S.Ct., at 359.
FN7. Thus, as this Court stated in Monongahela Navigation Co. v.
United States, 148 U.S. 312, 325, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893) a
case which has since been characterized as resting primarily on "estoppel,"
see, e. g., United States v. Rands, 389 U.S. 121, 126, 88 S.Ct. 265, 268,
19 L.Ed.2d 329 (1967), the Fifth Amendment "prevents the public from
loading upon one individual more than his just share of the burdens of
government, and says that when he surrenders to the public something more
and different from that which is exacted from other members of the public,
a full and just equivalent shall be returned to him."
See also Penn Central Transportation Co. v. New York City, 438 U.S.
104, 123-125, 98 S.Ct. 2646, 2659-2660, 57 L.Ed.2d 631 (1978);
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158,
160, 67 L.Ed. 322 (1922).
Here the requirement
that appellants permit appellees to exercise state- protected rights
of free expression and petition on shopping center property clearly does
not amount to an unconstitutional infringement of appellants' property
rights under the Taking Clause.
There is nothing to suggest that preventing appellants from
prohibiting this sort of activity will unreasonably impair the value or
use of their property as a shopping center.
The PruneYard is a large commercial complex that covers several
city blocks, contains numerous separate business establishments, and is
open to the public at large. The decision of the California Supreme Court
makes it clear that the PruneYard may restrict expressive activity by
adopting time, place, and manner regulations that will minimize any
interference with its commercial functions. Appellees were orderly, and
they limited their activity to the 84 common areas of the shopping center. In these circumstances, the fact that they may have
"physically invaded" appellants' property cannot be viewed as
This case is quite
different from Kaiser Aetna v. United States, supra. Kaiser Aetna was a case in which the owners of a
private pond had invested substantial amounts of money in dredging the
pond, developing it into an exclusive marina, and building a surrounding
marina community. The
marina was open only to fee-paying members, and the fees were paid
in part to "maintain the privacy and security of the pond."
Id., at 168, 100 S.Ct., at 386.
The Federal Government sought to compel free public use of the
private marina on the ground that the marina became subject to the federal
navigational servitude because the owners had dredged a channel connecting
it to "navigable water."
attempt to create a public right of access to the improved pond interfered
with Kaiser Aetna's "reasonable investment backed expectations."
We held that it went "so far beyond ordinary regulation or
improvement for navigation as to amount to a taking.
. . . " Id., at
178, 100 S.Ct., at 392. Nor
as a general proposition is the United States, as opposed to the several
States, possessed of residual authority that enables it to define
"property" in the first instance.
A State is, of course, bound by the Just Compensation Clause of the
Fifth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226,
233, 236-237, 17 S.Ct. 581, 584-585, 41 L.Ed. 979 (1897), but
here appellants have failed to demonstrate that the "right to exclude
others" is so essential to the use or economic value of their
property that the state-authorized limitation of it amounted to a
There is also little
merit to appellants' argument that they have been denied their property
without due process of law. In
Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934), this
property rights nor contract rights are absolute
. . . Equally
fundamental with the private right
*85 is that of the public to regulate it in the common interest.
. . .
* * *
[T]he guaranty of due process, as has often been held, demands only that
the law shall not be unreasonable, arbitrary or capricious, and that the
means selected shall have a real and substantial relation to the objective
sought to be attained." Id.,
at 523, 525, 54 S.Ct., at 510-511.
also Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463,
93 L.Ed. 533 (1949);
Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-125,
98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978). Appellants have failed to
provide sufficient justification for concluding that this test is not
satisfied by the State's asserted interest in promoting more expansive
rights of free speech and petition than conferred by the Federal
FN8. Although appellants
contend there are adequate alternative avenues of communication available
for appellees, it does not violate the United States Constitution for the
State Supreme Court to conclude that access to appellants' property in the
manner required here is necessary to the promotion of
state-protected rights of free speech and petition.
finally 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. [FN9] They
86 state that in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51
L.Ed.2d 752 (1977), this Court concluded that a State may not
constitutionally require an individual to participate in the dissemination
of an ideological 87 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
ofWooley is that the State may not force an individual to display any
message at all.
contend that this issue is not properly before us because appellants have
not met their burden of showing that it was raised in the state courts.
It is well settled that in challenging the validity of a state law
on the ground that it is repugnant to the Constitution of the United
States, "[n]o particular form of words or phrases is essential, but
only that the claim of invalidity on the ground therefor be brought to the
attention of the state court with fair precision and in due time.
And if the record as a whole shows either expressly or by clear
intendment that this was done, the claim is to be regarded as having been
adequately presented." New
York ex rel. Bryant v. Zimmerman, 278 U.S., at 67, 49 S.Ct., at 63. Before
the Supreme Court of California, appellants argued:
constitutional right to exclude potential communicants from private
property is inextricably intertwined with the right of the property owner
to select the way he wishes to use his property.
. . . The right,
which has been recognized as deriving from the owner's status as owner,
also derives from the owner's status as himself a potential communicant.
Defendant urges that his constitutional right to free speech would be
infringed if he were required to make his property available to others for
the purpose of their expressive activity."
Brief in Response to Amici Curiae Briefs in No. S.F. 23812, p. 39 (Sup.Ct.Cal.).
In making this argument appellants explicitly relied on Wooley v.
Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), and West
Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct.
1178, 87 L.Ed. 1628 (1943). Brief
in Response to Amici Curiae Briefs, supra, at 40-42.
Before this Court appellants contend that "[t]he
constitutional rights of private property owners also have their origins
in the First Amendment right of the property owner not to be forced by the
state to use his property as a forum for the speech of others." Brief for Appellants 12.
See also Juris. Statement 12.
And appellants throughout this litigation have been asserting their
federal constitutional right to prohibit public expressive activity on
their property that is not directly related to PruneYard's commercial
purposes. In addition, this Court has held federal claims to have been
adequately presented even though not raised in lower state courts when the
highest state court renders an unexpected interpretation of state law or
reverses its prior interpretation. Brinkerhoff-Faris
Trust & Savings Co. v. Hill, 281 U.S. 673, 677-678, 50 S.Ct.
451, 453, 74 L.Ed. 1107 (1930); Missouri ex rel. Missouri Ins. Co. v.
Gehner, 281 U.S. 313, 320, 50 S.Ct. 326, 327, 74 L.Ed. 870 (1930);
Saunders v. Shaw, 244 U.S. 317, 320, 37 S.Ct. 638, 640, 61 L.Ed.
1163 (1917). Here prior
to its decision below, the California Supreme Court had expressly decided
to follow Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d
131 (1972), in defining the scope of state constitutional rights of free
speech and petition. Diamond
II, 11 Cal.3d, at 335, 113 Cal.Rptr., at 471, 521 P.2d, at 463.
It was not until the instant case that the California Supreme Court
overruled Diamond II, supra, and held that the California Constitution can
and does require shopping center owners to grant access to individuals
exercising their state rights of free expression and petition. Prior to
reaching the California Supreme Court, appellants argued that the Diamond
II decision bound the California Superior Court and Court of Appeal to
rule in appellants' favor. Appellants
prevailed in these courts, and Diamond II was held to be controlling. Once before the California Supreme Court, as noted
above, appellants explicitly presented their federal constitutional right
to prohibit public expression on their property in terms of Wooley and
Barnette. It was not
until that time that they could have reasonably expected that the validity
of the earlier Diamond II decision would be questioned.
In these circumstances we conclude that appellants have adequately
raised the federal question.
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 88
Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943),
and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831,
41 L.Ed.2d 730 (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 "require[d]
the individual to communicate by word and sign his acceptance" of
government-dictated political ideas, whether or not he subscribed to
them. 319 U.S., at 633, 63
S.Ct., at 1183. 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 "exact[ed] a
penalty on the basis of the content of a newspaper."
418 U.S., at 256, 94 S.Ct., at 2839.
There also was a danger in Tornillo that the statute would "dampe[n]
the vigor and limi[t] the variety of public debate" by deterring
editors from publishing controversial political statements that might
trigger the application of the statute.
Id., at 257, 94 S.Ct., at 2839.
Thus, the statute was found to be an "intrusion into the
function of editors." Id.,
at 258, 94 S.Ct., at 2839. These
concerns obviously are not present here.
We conclude that
neither appellants' federally recognized property rights nor their First
Amendment rights have 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
Mr. Justice BLACKMUN
joins the opinion of the Court except that sentence thereof, ante, at
2042, which reads: "Nor 89 as a general proposition is the United States, as opposed to the
several States, possessed of residual authority that enables it to define
'property' in the first instance."
Mr. Justice MARSHALL, concurring.
I join the opinion of
the Court, but write separately to make a few additional points.
In Food Employees v.
Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968),
this Court held that the First and Fourteenth Amendments prevented a state
court from relying on its law of trespass to enjoin the peaceful picketing
of a business enterprise located within a shopping center. The Court
concluded that because the shopping center "serves as the community
business block" and is open to the general public, "the State
may not delegate the power, through the use of its trespass laws, wholly
to exclude those members of the public wishing to exercise their First
Amendment rights on the premises."
Id., at 319, 88 S.Ct., at 1609.
The Court rejected the suggestion that such an abrogation of the
state law of trespass would intrude on the constitutionally protected
property rights of shopping center owners. And it emphasized that the
shopping center was open to the public and that reasonable restrictions on
the exercise of communicative activity would be permitted.
"[N]o meaningful claim to protection of a right of privacy can
be advanced by respondents here.
Nor on the facts of the case can any significant claim to
protection of the normal business operation of the property be raised.
Naked title is essentially all that is at issue." Id., at 324,
88 S.Ct., at 1611.
The Court in Logan
Valley emphasized that if the property rights of shopping center owners
were permitted to overcome the First Amendment rights of prospective
petitioners, a significant intrusion on communicative activity would
result. Because "[t]he
large-scale movement of this country's population from the cities to
the suburbs has been accompanied 90
by the advent of the suburban shopping center," a contrary decision
would have "substantial consequences for workers seeking to challenge
substandard working conditions, consumers protesting shoddy or overpriced
merchandise, and minority groups seeking nondiscriminatory hiring
policies." Ibid. In light
of these realities, we concluded that the First and Fourteenth Amendments
prohibited the State from using its trespass laws to prevent the exercise
of expressive activities on privately owned shopping centers, at least
when those activities were related to the operations of the store at which
they were directed.
In Lloyd Corp. v.
Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131
(1972), the Court confined Logan Valley to its facts, holding that
the First and Fourteenth Amendments were not violated when a State
prohibited petitioning that was not designed to convey information with
respect to the operation of the store that was being picketed. The Court indicated that a contrary result would
constitute "an unwarranted infringement of property rights."
407 U.S., at 567, 92 S.Ct., at 2228.
And in Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196
(1976), the Court concluded that Lloyd had in fact overruled Logan Valley.
I continue to believe
that Logan Valley was rightly decided, and that both Lloyd and Hudgens were incorrect interpretations of the First
and Fourteenth Amendments. State
action was present in all three cases.
In all of them the shopping center owners had opened their centers
to the public at large, effectively replacing the State with respect to
such traditional First Amendment forums as streets, sidewalks, and parks. The State had in turn made its laws of trespass
available to shopping center owners, enabling them to exclude those who
wished to engage in expressive activity on their premises.
[FN1] 91 Rights of free expression become illusory when a State
has operated in such a way as to shut off effective channels of
communication. I continue to
believe, then, that "the Court's rejection of any role for the First
Amendment in the privately owned shopping center complex stems
. . . from an overly
formalistic view of the relationship between the institution of private
ownership of property and the First Amendment's guarantee of freedom of
speech." Hudgens v.
NLRB, supra, at 542, 96 S.Ct., at 1047 (dissenting opinion).
FN1. In this respect the cases resembled Shelley v. Kraemer, 334
U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.ED.2d 686 (1964), in which the
common-law rules of contract and tort were held to constitute state
action for Fourteenth Amendment purposes.
In the litigation now
before the Court, the Supreme Court of California construed the California
Constitution to protect precisely those rights of communication and
expression that were at stake in Logan Valley, Lloyd, and Hudgens.
The California court concluded that its State "Constitution
broadly proclaims speech and petition rights.
Shopping centers to which the public is invited can provide an
essential and invaluable forum for exercising those rights."
23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 860, 592 P.2d 341, 347
(1979). Like the Court
in Logan Valley, the California court found that access to shopping
centers was crucial to the exercise of rights of free expression.
And like the Court in Logan Valley, the California court rejected
the suggestion that the Fourteenth Amendment barred the intrusion on the
property rights of the shopping center owners.
I applaud the court's decision, which is a part of a very healthy
trend of affording state constitutional provisions a more expansive
interpretation than this Court has given to the Federal Constitution.
See Brennan, State Constitutions and the Protection of Individual
Rights, 90 Harv.L.Rev. 489 (1977).
Appellants, of course,
take a different view. They
contend that the decision below amounts to a constitutional
"taking" or a deprivation of their property without due process
of law. Lloyd, they claim,
did not merely overrule Logan 92
Valley's First Amendment holding; it
overruled its due process ruling as well, recognizing a federally
protected right on the part of shopping center owners to enforce the
pre‑existing state law of trespass by excluding those who engage in
communicative activity on their property.
In my view, the issue appellants present is largely a restatement
of the question of whether and to what extent a State may abrogate or
modify common-law rights. Although
the cases in this Court do not definitively resolve the question, they
demonstrate that appellants' claim has no merit.
Earlier this Term, in
Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481
(1980), the Court was also confronted with a claim that the abolition of a
cause of action previously conferred by state law was an impermissible
taking of "property."
We responded that even if a pre-existing state-law
remedy "is a species of 'property' protected by the Due Process
Clause . . .,
it would remain true that the State's interest in fashioning its
own rules of tort law is paramount to any discernible federal interest,
except perhaps an interest in protecting the individual citizen from state
action that is wholly arbitrary or irrational."
Id., at 281-282, 100 S.Ct., at 557.
Similarly, in the context of a claim that a guest statute
impermissibly abrogated common-law rights of tort, the Court
observed that the Due Process Clause does not forbid the "creation of
new rights, or the abolition of old ones recognized by the common law, to
attain a permissible legislative object."
Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221
(1929). And in Munn v.
Illinois, 94 U.S. 113, 24 L.Ed. 77 (1877), the Court upheld a statute
limiting the permissible rate for the warehousing of grain.
"A person has no property, no vested interest, in any rule of
the common law. . . .
Rights of property which have been created by the common law cannot
be taken away without due process; but
the law itself, as a rule of conduct, may be changed at the will
. . . of the
legislature, unless prevented by constitutional limitations.
Indeed, the great office of statutes is to remedy defects in the
93 common law as they are developed, and to adapt it to the changes of
time and circumstances." Id.,
at 134. See alsoSecond Employers' Liability Cases, 223 U.S. 1,
50, 32 S.Ct. 169, 175, 56 L.Ed. 327 (1912);
Crowell v. Benson, 285 U.S. 22, 41, 52 S.Ct. 285, 288, 76 L.Ed. 598
Appellants' claim in
this case amounts to no less than a suggestion that the common law of
trespass is not subject to revision by the State, notwithstanding the
California Supreme Court's finding that state-created rights of
expressive activity would be severely hindered if shopping centers were
closed to expressive activities by members of the public.
If accepted, that claim would represent a return to the era of
Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), when
common-law rights were also found immune from revision by State or
Federal Government. Such an approach would freeze the common law as it has
been constructed by the courts, perhaps at its 19th-century state
of development. It
would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result.
On the other hand, I
do not understand the Court to suggest that rights of property are to be
defined solely by state law, or that there is no federal constitutional
barrier to the abrogation of common-law rights by Congress or a
state government. The
constitutional terms "life, liberty, and property" do not derive
their meaning solely from the provisions of positive law.
They have a normative dimension as well, establishing a sphere of
private autonomy which government is bound to respect. [FN2]
Quite serious constitutional questions might be raised if a
legislature attempted to abolish certain
94 categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on
governmental authority to abolish "core" common-law
rights, including rights against trespass, at least without a compelling
showing of necessity or a provision for a reasonable alternative remedy.
FN2. This understanding is embodied in cases in the procedural due
process area holding that at least some "grievous losses" amount
to deprivation of "liberty" or "property" within the
meaning of the Due Process Clause, even if those losses are not protected
by statutory or common law. See
Vitek v. Jones, 445 U.S. 480, 488-489, 100 S.Ct. 1254,
63 L.Ed.2d 552 (1980), and cases cited;
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47
L.Ed.2d 18 (1976). See
also Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d
451 (1976) (STEVENS, J., dissenting).
FN3. For example, in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct.
1401, 51 L.Ed.2d 711 (1977), the Court found a constitutional liberty
interest in freedom from corporal punishment, in large part on the ground
that that interest was protected at common law.
The Court stated that the "Due Process Clause
. . . was intended to
give Americans at least the protection against governmental power that
they had enjoyed as Englishmen against the power of the Crown.
The liberty preserved from deprivation without due process included
the right 'generally to enjoy those privileges long recognized at common
law as essential to the orderly pursuit of happiness by free men.' "
Id., at 672-673, 97 S.Ct., at 1413 (citation omitted). In Duke Power Co. v. Carolina Environmental Study
Group, 438 U.S. 59, 88, 98 S.Ct. 2620, 2638, 57 L.Ed.2d 595 (1978), the
Court reserved the question whether in creating a compensation scheme for
victims of nuclear accidents, Congress was constitutionally obliged to
"provide a reasonable substitute remedy" for the abrogation of
common‑law rights of
in New York Central R. Co. v. White, 243 U.S., 188, 201, 37 S.Ct. 247,
252, 61 L.Ed. 667 (1917), the Court expressed uncertainty as to whether
"a State might, without violence to the constitutional guaranty of
'due process of law,' suddenly set aside all common-law rules
respecting liability as between employer and employee, without providing a
reasonably just substitute," and "doubted whether the State
could abolish all rights of action on the one hand, or all defenses on the
other, without setting up something adequate in their stead."
has not been approached in this case.
The California Supreme Court's decision is limited to shopping
centers, which are already open to the general public.
The owners are permitted to impose reasonable restrictions on
expressive activity. There
has been no showing of interference with appellants' normal business
California court has not permitted an invasion of any personal sanctuary.
Cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542
(1969). No rights of
privacy are implicated. In
these circumstances 95 there is
no basis for strictly scrutinizing the intrusion authorized by the
California Supreme Court.
I join the opinion of
Mr. Justice WHITE,
concurring in part and concurring in the judgment.
I join Mr. Justice
POWELL's concurring opinion but with these additional remarks.
The question here is
whether the Federal Constitution forbids a State to implement its own
free-speech guarantee by requiring owners of shopping centers to
permit entry on their property for the purpose of communicating with the
public about subjects having no connection with the shopping centers'
business. The Supreme Court of California held that in the
circumstances of this case the federally protected property rights of
appellants were not infringed.
The state court recognized, however, that reasonable time and place
limitations could be imposed and that it was dealing with the public or
common areas in a large shopping center and not with an individual retail
establishment within or without the shopping center or with the property
or privacy rights of a homeowner. On the facts before it, "[a] handful of additional
orderly persons soliciting signatures and distributing handbills
. . . would not
markedly dilute defendant's property rights." 23 Cal.3d 899, 911, 153
Cal.Rptr. 854, 860-861, 592 P.2d 341, 347-348 (1979).
I agree that on the
record before us there was not an unconstitutional infringement of
appellants' property rights. But
it bears pointing out that the Federal Constitution does not require that
a shopping center permit distributions or solicitations on its property.
Indeed, Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d
196 (1976), and Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33
L.Ed.2d 131 (1972), hold that the First and Fourteenth Amendments do not
prevent the property owner from excluding those who would demonstrate or
communicate on his property. Insofar
as the Federal Constitution is concerned, therefore, a State may
96 decline to construe its own constitution so as to limit the
property rights of the shopping center owner.
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
Mr. Justice POWELL,
with whom Mr. Justice WHITE joins, concurring in part and in the judgment.
Although I join the
judgment, I do not agree with all of the reasoning in Part V of the
Court's opinion. I join
Parts I-IV on the understanding that our decision is limited to the
type of shopping center involved in this case. Significantly different
questions would be presented if a State authorized strangers to picket or
distribute leaflets in privately owned, freestanding stores and commercial
premises. Nor does our decision today apply to all "shopping
generic term may include retail establishments that vary widely in size,
location, and other relevant characteristics.
Even large establishments may be able to show that the number or
type of persons wishing to speak on their premises would create a
substantial annoyance to customers that could be eliminated only by
elaborate, expensive, and possibly unenforceable time,
place, and manner restrictions.
As the Court observes, state power to regulate private property is
limited to the adoption of reasonable restrictions that "do not
amount to a taking without 97
just compensation or contravene any other federal constitutional
provision." Ante, at 2041.
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."
Ante, at 2043. 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.
See Wooley v. Maynard,
430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); West Virginia State
Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628
(1943). 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."
430 U.S., at 714, 97 S.Ct., at 1435.
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.
. . ." Ante, at
2044. 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
98 an instrument for fostering public adherence to an ideological
point of view he finds unacceptable." Wooley v. Maynard, supra, 430
U.S., at 715, [FN1] 97 S.Ct., at 1435.
FN1. Cf. Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219,
2229, 33 L.Ed.2d 131 (1972) ("property [does not] lose its private
character merely because the public is generally invited to use it for
As the Court observes,
this case involves only a state-created right of limited access to a
specialized type of property. Ante,
at 2044. 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. Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730
(1974). See also
Columbia Broadcasting System, Inc. v. Democratic National committee, 412
U.S. 94, 117, 93 S.Ct. 2080, 2093, 36 L.Ed.2d 772 (1973) (plurality
opinion). Such a right of access burdens the newspaper's
"fundamental right to decide what to print or omit."
Wooley v. Maynard, supra, 430 U.S., at 714, 97 S.Ct., at 1435;
see Miami Herald Publishing Co. v. Tornillo, supra, 418 U.S., at
257, 94 S.Ct., at 2839. As
such, it is tantamount to compelled affirmation and, thus, presumptively
FN2. Even if a person's own speech is not affected by a right of
access to his property, a requirement that he lend support to the
expression of a third party's views may burden impermissibly the freedoms
of association and belief protected by the First and Fourteenth
Amendments. In Abood v.
Detroit Board of Education, 431 U.S. 209, 235, 97 S.Ct. 1782, 1799, 52
L.Ed.2d 261 (1977), we held that a State may not
require a person "to contribute to the support of an
ideological cause he may oppose. .
. . " To require a landowner to supply a forum for causes he finds
objectionable also might be an unacceptable "compelled
subsidization" in some circumstances.
Id., at 237, 97 S.Ct., at 1800; cf. Central Hardware Co. v. NLRB,
407 U.S. 539, 543-545, 92 S.Ct. 2238, 2241-2242, 33 L.Ed.2d
122 (1972) ("property rights" may permit exclusion of union
organizers); NLRB v. Babcock
& Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975
(1956) (same). See
generally Eastex, Inc. v. NLRB, 437 U.S. 556, 571-576, 98 S.Ct.
2505, 2515-2517, 57 L.Ed.2d 428 (1978);
Hudgens v. NLRB, 424 U.S. 507, 521-522, 96 S.Ct. 1029,
1037-1038, 47 L.Ed.2d 196 (1976).
The appellants do not argue, however, that Abood supports the
claimed right to exclude speakers from their property.
Nor have they alleged that they disagree with the messages at issue
in this case. See
infra, at 2051.
99 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 had 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, see ante, at 2044, cannot
restore his "right to refrain from speaking at all." Wooley v. Maynard, supra, 430 U.S., at 714, 97 S.Ct., at
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
distributers 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
100 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.
See Abood v. Detroit Board of Education, 431 U.S. 209, 213, 241, 97
S.Ct. 1782, 1802, 52 L.Ed.2d 261 (1977).
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." Ibid. [FN3]
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. [FN4]
FN3. The problem is compounded where, as in shopping centers or in
the lobby areas of hotels and office buildings, stores are leased to
different proprietors with divergent views.
FN4. 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, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969). Observing that a State has no interest in controlling the moral
content of a person's thoughts, ibid., 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.
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 101 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.
See ante, at 2038, 2042.
Appellees are high school students who set up their card table in
one corner of a central courtyard known as the "Grand Plaza."
App. to Juris. Statement B-2.
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.
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.