The Goldwater Institute this week filed a brief in the U.S. Supreme Court urging it to overrule a decades-old precedent that allows people to exercise their freedom of speech—by trespassing on other people’s land. That case, called PruneYard v. Robins, was decided in 1980, and it held that the Fifth Amendment’s takings clause was not violated when the government blocked shopping mall owners from denying access to people who want to gather signatures on petitions, or engage in other expressive activities.
In the 40-plus years since PruneYard was decided, the Supreme Court has overruled major aspects of that decision—and state courts have almost entirely rejected it. Yet, it remains on the books, and is regularly trotted out to empower people to trespass on property that isn’t theirs, on the theory that doing so is simply free speech.
As we note in our brief, the basic problem with PruneYard was that it ignored the principle philosophers call “compossibility.” That principle holds that individual rights never contradict one another—it should always be possible for two people to exercise their individual rights without intruding on each other’s freedom. Or, as the old saying has it, your right to swing your fist ends where my nose begins.
The PruneYard decision ignored that principle and held that states are free to give people the “right” to go onto someone else’s land—against their will—to engage in “free speech.” But it isn’t free speech to force someone else to help you spread your message. Nobody has a right to express himself on someone else’s land without that person’s consent any more than he has a right to force other people to pay for a microphone. And in the years since 1980, the Supreme Court has made clear that the Constitution forbids the government from compelling some people to subsidize the speech of others.
Yet the Court has never overruled PruneYard, and as a result, lawyers and judges continue to trot it out to justify rules that are incompatible with free speech. For example, just two years ago, in Moody v. NetChoice, people who wanted to force media companies to broadcast their messages, even though the companies didn’t want to, cited PruneYard as justification. They argued that if a shopping mall owner can be forced to let petition circulators on his land, then there’s no reason X or Facebook can’t be forced to publish things they disapprove of. We filed a brief arguing that that was wrong—and the Court agreed with us, but, unfortunately, it left the PruneYard precedent in place.
In this new lawsuit, a petition circulator in California (where the original PruneYard case came from) filed a lawsuit arguing that he should be allowed to go onto the land of a private shopping center to circulate petitions, and the state courts agreed, relying on the old precedent. Now the property owners, represented by our friends at the Pacific Legal Foundation, have asked the U.S. Supreme Court to take up the issue.
The PruneYard ruling was wrong when it was first decided—and what’s more, state courts have almost universally rejected it. As we put it in the brief, that ruling “failed to address the central issue—whether private property becomes public just because people shop there—and its takings analysis is now entirely obsolete. Most importantly, the decision disregarded the compossibility requirement and the rights of property owners who should be free to exclude expressive trespassers.
PruneYard remains in place only because its vagueness makes it malleable enough to be distinguished by subsequent cases. But that’s a bug, not a feature. PruneYard should be overruled.”
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government.
