Amicus Curiae Brief — Majestic Realty Co., et al., Petitioners v. Alex Salazar

No. 25-1322

In the

Supreme Court of the United States

MAJESTIC REALTY CO., et al.,

Petitioners,

v.

ALEX SALAZAR,

Respondent.

On Petition for a Writ of Certiorari to the

California Court of A ppeal for the Second District

BRIEF AMICUS CURIAE

OF THE GOLDWATER INSTITUTE

IN SUPPORT OF PETITIONERS

Timothy Sandefur

Counsel of Record

Scharf-Norton Center for

Constitutional Litigation at

the Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amicus Curiae Goldwater Institute

121097

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Should PruneYard Shopping Ctr. v. Robins, 447 U.S.

74 (1980), be overruled?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . 1

I N T RODUC T ION A N D SU M M A RY OF

REASONS FOR GRANTING THE PETITION . . . 2

REASONS FOR GRANTING THE PETITION . . . . . 4

I.

PruneYard was wrong when it was decided

and is anomalous today . . . . . . . . . . . . . . . . . . . . . 4

A. PruneYard is incoherent and has

been accordingly rejected by many

state courts . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. This Court has struggled in vain to

make sense of PruneYard . . . . . . . . . . . . . . 10

C. Even California courts have tried

and failed to make PruneYard work . . . . . 12

D. PruneYard never adequately addressed

objections to its theory – and crucial

underpinnings of PruneYard have

already been overruled . . . . . . . . . . . . . . . . 16

iii

Table of Contents

Page

II. State power to expand protections for

individual rights cannot warrant violating

individual rights . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Albertson’s, Inc. v. Young,

131 Cal. Rptr.2d 721 (App. 2003) . . . . . . . . . . . . . . . . 14

Bank of Stockton v. Church of Soldiers,

52 Cal. Rptr.2d 429 (App. 1996) . . . . . . . . . . . . . . . . . . 5

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) . . . . . . . . . . . . . . . . . . 3, 6, 7, 10, 18

Cedar Point Nursery v. Shiroma,

923 F.3d 524 (9th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 7

Charleston Joint Venture v. McPherson,

417 S.E.2d 544 (S.C. 1992) . . . . . . . . . . . . . . . . . . . . . . 8

Citizens for Ethical Gov’t, Inc. v.

Gwinnett Place Assocs., L.P.,

392 S.E.2d 8 (Ga. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . 8

City of W. Des Moines v. Engler,

641 N.W.2d 803 (Iowa 2002) . . . . . . . . . . . . . . . . . . . . . 1

Coleman v. City of Mesa,

284 P.3d 863 (Ariz. 2012) . . . . . . . . . . . . . . . . . . . . . . . 1

Cologne v. Westfarms Assocs.,

469 A.2d 1201 (Conn. 1984) . . . . . . . . . . . . . . . . . . 8, 10

v

Cited Authorities

Page

Craig v. Masterpiece Cakeshop, Inc.,

370 P.3d 272 (Colo. App. 2015) . . . . . . . . . . . . . . . . . . 11

Fardig v. Mun. of Anchorage,

785 P.2d 911 (Alaska App. 1990) . . . . . . . . . . . . . . . . . 7

Fashion Valley Mall, LLC v. NLRB,

172 P.3d 742 (Cal. 2007) . . . . . . . . . . . . . . . . . . 6, 13, 15

Feminist Women’s Health Ctr. v. Blythe,

39 Cal. Rptr.2d 189 (App. 1995) . . . . . . . . . . . . . . . . . . 6

Fiesta Mall Venture v. Mecham Recall Comm.,

767 P.2d 719 (Ariz. App. 1988) . . . . . . . . . . . . . . . . . . . 8

First Eng. Evangelical Lutheran Church of

Glendale v. Los Angeles Cnty.,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Golden Gateway Center v.

Golden Gateway Tenants Ass’n,

29 P.3d 797 (Cal. 2001) . . . . . . . . . . . . . . . . . . . . . 12, 13

Guttenberg Taxpayers & Rentpayers Ass’n v.

Galaxy Towers Condo. Ass’n,

688 A.2d 108 (N.J. App. Div. 1996) . . . . . . . . . . . . . . 12

Harper & Row, Publishers, Inc. v.

Nation Enterprises,

471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vi

Cited Authorities

Page

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Jackson v. Raffensperger,

843 S.E.2d 576 (Ga. 2020) . . . . . . . . . . . . . . . . . . . . . . . 1

Jacobs v. Major,

407 N.W.2d 832 (Wis. 1987) . . . . . . . . . . . . . . . . . . . . . 8

Janus v. AFSCME,

585 U.S. 878 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 10, 21

Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kelo v. City of New London,

545 U.S. 469 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ladd v. Real Est. Comm’n,

230 A.3d 1096 (Pa. 2020) . . . . . . . . . . . . . . . . . . . . . . . 1

Lloyd Corp. v. Tanner,

407 U.S. 551 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Marsh v. Alabama,

326 U.S. 501 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

Masterpiece Cakeshop, Ltd. v.

Colorado C.R. Comm’n,

584 U.S. 617 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) . . . . . . . . . . . . . . . . . . 10, 11, 12, 19

New Jersey Coal. Against War in the Middle E.

v. J.M.B. Realty Corp.,

650 A.2d 757 (N.J. 1994) . . . . . . . . . . . . . . . . . . . . 19, 20

NFIB v. Sebelius,

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pacific Gas & Electric Co. v.

Public Utilities Commission of California,

475 U.S. 1 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

People v. DiGuida,

604 N.E.2d 336 (Ill. 1992) . . . . . . . . . . . . . . . . . . . . . . . 8

PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Robins v. Pruneyard Shopping Center,

592 P.2d 341 (Cal. 1979) . . . . . . . . . . . . . . . . . . 2-6, 9-21

S.O.C., Inc. v. Mirage Casino-Hotel,

23 P.3d 243 (Nev. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 8

viii

Cited Authorities

Page

SHAD All. v. Smith Haven Mall,

488 N.E.2d 1211 (N.Y. 1985) . . . . . . . . . . . . . . . . . . . . 8

Southcenter Joint Venture v.

Nat’l Democratic Pol’y Comm.,

780 P.2d 1282 (Wash. 1989) . . . . . . . . . . . . . . . . . . . . . 7

State v. Beaver,

887 S.E.2d 610 (W. Va. 2022) . . . . . . . . . . . . . . . . . . . . 1

State v. Felmet,

273 S.E.2d 708 (N.C. 1981) . . . . . . . . . . . . . . . . . . . . . . 8

State v. Mixton,

478 P.3d 1227 (Ariz. 2021), cert. denied,

142 S. Ct. 184 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

State v. Viglielmo,

95 P.3d 952 (Haw. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 8

Trader Joe’s Co. v. Progressive Campaigns, Inc.,

86 Cal. Rptr.2d 442 (App. 1999) . . . . . . . . . . . . . . . . . . 6

United Food & Com. Workers Union v.

Crystal Mall Assoc., L.P.,

852 A.2d 659 (Conn. 2004) . . . . . . . . . . . . . . . . . . . . . . 8

W. Pa. Socialist Workers 1982 Campaign v.

Connecticut Gen. Life Ins. Co.,

515 A.2d 1331 (Pa. 1986) . . . . . . . . . . . . . . . . . . . . . . 8, 9

ix

Cited Authorities

Page

Woodland v. Michigan Citizens Lobby,

378 N.W.2d 337 (Mich. 1985) . . . . . . . . . . . . . . . . . . . . 8

Yim v. City of Seattle,

451 P.3d 675 (Wash. 2019) . . . . . . . . . . . . . . . . . . . . . . . 1

Zarsky v. State,

827 S.W.2d 408 (Tex. App. 1992) . . . . . . . . . . . . . . . . . 8

Other Authorities

Antonin Scalia, The Rule of Law As a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) . . . . . . . . . . . . . . . . . . . 14

Christina Sandefur, Safeguarding the Right to Try,

49 Ariz. St. L.J. 513 (2017) . . . . . . . . . . . . . . . . . . . . . . 2

Gregor y Si sk , Up r ootin g th e Pr un eYar d,

38 Rutgers L.J. 1145 (2007) . . . . . . . . . . . 15, 16, 19, 20

Hillel Steiner, The Structure of a Set of Compossible

Rights, 74 J. Phil. 767 (1977) . . . . . . . . . . . . . . . . . . . . . 9

Laurence Tribe, American Constitutional Law

(2d ed. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Nicholas C. Dranias, 50 Bright Stars: An Assessment

of Each State’s Constitutional Commitment to

Limited Government, Goldwater Inst. Policy

Report No. 233 (Sept. 17, 2009) . . . . . . . . . . . . . . . . . . 2

x

Cited Authorities

Page

The Federalist No. 51 (J. Cooke, ed., 1961) (James

Madison) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Timothy Sandefur, State Powers and the Right to

Pursue Happiness, 21 Tex. Rev. L. & Pol. 323 (2017) . . 2

1

INTEREST OF AMICUS CURIAE1

The Goldwater Institute (“GI”) is a nonpartisan public

policy and research foundation devoted to advancing the

principles of limited government, individual freedom, and

constitutional protections through litigation, research,

and advocacy. Through its Scharf-Norton Center for

Constitutional Litigation, GI litigates and files amicus

briefs when its or its clients’ objectives are implicated.

Among GI’s priorities is the degree to which states can

protect individual rights more broadly than does the

federal government. GI has often appeared, both as

amicus and representing parties, in state and federal

courts to address such matters. See, e.g., State v. Beaver,

887 S.E.2d 610 (W. Va. 2022) (state protection of right to

education); State v. Mixton, 478 P.3d 1227 (Ariz. 2021),

cert. denied, 142 S. Ct. 184 (2021) (state protection of

privacy rights); Ladd v. Real Est. Comm’n, 230 A.3d

1096 (Pa. 2020) (state protection of economic freedom);

Jackson v. Raffensperger, 843 S.E.2d 576 (Ga. 2020) (state

protection of economic freedom); Yim v. City of Seattle,

451 P.3d 675 (Wash. 2019) (state protection of property

rights); Coleman v. City of Mesa, 284 P.3d 863 (Ariz. 2012)

(state protection of free speech).

GI scholars have also published important research on

the degree to which state constitutions can protect rights

1. Pursuant to Rule 37.6, counsel for amicus affirms that

no counsel for any party authored this brief in whole or part

and no person or entity, other than amicus, their members, or

counsel, made a monetary contribution toward its preparation or

submission. All parties received notice of amicus’ intention to file

at least ten days before the due date.

2

more broadly than does the federal Constitution. See, e.g.,

Christina Sandefur, Safeguarding the Right to Try, 49

Ariz. St. L.J. 513 (2017); Timothy Sandefur, State Powers

and the Right to Pursue Happiness, 21 Tex. Rev. L. &

Pol. 323 (2017); Nicholas C. Dranias, 50 Bright Stars: An

Assessment of Each State’s Constitutional Commitment

to Limited Government, Goldwater Inst. Policy Report

No. 233 (Sept. 17, 2009). 2

GI believes its legal experience and public expertise

will assist this Court in deciding this petition.

INTRODUCTION AND SUMMARY OF REASONS

FOR GRANTING THE PETITION

Since this Court’s opinion in PruneYard Shopping

Center v. Robins, 447 U.S. 74 (1980), the jurisprudence

of free speech has suffered from a major internal

contradiction: specifically, while the Constitution protects

the right to speak, and, of course, the right not to speak,

private property owners are often effectively forced

against their will to speak or at least facilitate speech

by allowing others to speak on their land, even though

these property owners would prefer not to allow this.

That, indeed, is what the California Supreme Court held

in Robins v. Pruneyard Shopping Center, 592 P.2d 341

(Cal. 1979), and which this Court declared unobjectionable

in its own PruneYard ruling.

Both rulings were wrong, however, and in the years

since, the theory endorsed by PruneYard – that freedom of

2 . ht tp s: // w w w.goldw at er i nst it ut e.org / w p - cont ent /

uploads/2014/11/09.17.20092c-50-bright-stars-Report.pdf.

3

speech can be construed as compelling property owners

to allow others to speak on their land – has been rejected

by multiple state courts and drastically undermined

by this Court in cases such as Cedar Point Nursery v.

Hassid, 594 U.S. 139 (2021). It’s time now for the Court

to overturn it.

Yes, states have power to provide greater protections

for individual rights than are accorded by the federal

Constitution. But they may not do so in a way that violates

the individual rights of others – as the California mandate

in PruneYard did. By blessing laws that contradict that

principle, PruneYard set the stage for confusion and legal

inconsistency that has plagued the law ever since. In fact,

PruneYard’s incoherence has led most state courts to

reject it, and even in California, where PruneYard was

born, courts have limited it significantly, due to the fact

that it authorizes the violation of speech and property

rights, and leads to arbitrary and irrational results.

P r op e r t y ow ne r s h ave b ot h t he mor a l a nd

constitutional right to decide what messages they will let

their property be used to propagate. To deprive them of

these rights is wrong and unconstitutional, and cannot be

rationalized by labeling such intrusions an “expansion”

of “rights” – because there can be no right to trespass

on another’s property for purposes of self-expression.

PruneYard contradicts the Fifth Amendment, is poorly

theorized, and is obsolete. The Court should take this

case to overrule it.

4

REASONS FOR GRANTING THE PETITION

I.

PruneYard was wrong when it was decided and is

anomalous today.

A.

PruneYard is incoherent and has been

accordingly rejected by many state courts.

In PruneYard, this Court affirmed a California

Supreme Court decision (592 P.2d 341) concerning a

shopping center whose owner sought to bar a group of

petition circulators from gathering signatures relating to

a United Nations resolution about Syria. The petitioners

sued in state court, and the state’s high court held that

California’s state constitutional guarantee of free speech,

being more broadly worded than the federal First

Amendment, entitled the petitioners to enter someone

else’s land to express themselves against the owners’ will.

(592 P.2d at 347.) It reached that conclusion on the theory

that shopping malls had become the modern equivalent of

the public square or the community at large. This Court

then said that the California court’s ruling did not deprive

the owner of his federal property or speech rights, and that

the owner was not entitled to compensation. PruneYard,

447 U.S. at 82–85, 87–88.

The result is a fatally flawed jurisprudence that is

increasingly anomalous today and has led to incoherent

results. This Court should overrule its PruneYard

decision.

The state court’s reasoning was incoherent from the

outset, and most other courts to consider the question have

subsequently rejected its notion that free speech includes

5

a right to trespass. Indeed, California itself has drastically

limited PruneYard in the years since. Even its original

decision dimly recognized the unworkability of the idea

that one person can have a free-speech right to trespass

on another person’s constitutionally protected property,

and tried in vain to cushion the rule by insisting that the

decision was not giving “free rein” to all speakers. See

592 P.2d at 347. The court claimed that the purported

constitutional right-to-trespass was limited to only

the “reasonably exercised” right to circulate petitions

for ballot initiatives, because initiatives are part of the

California political system. Id. at 347, 345. But that effort

to pull punches did not work, for several reasons.

First, that purported distinction was a contentbased speech distinction: it g rant ed a trespass

right to some speakers and not others, based on the

content of the messages those trespassers wished to

communicate. Second, the court gave no clue as to what

“reasonably exercised” means. Similarly, it said that

this right-to-trespass would not apply to “modest retail

establishment[s],” id. at 347, although it gave no guidance

as to how to differentiate “modest” from not-so-modest

establishments, or why retail should be treated differently

from wholesale. See Bank of Stockton v. Church of

Soldiers, 52 Cal. Rptr.2d 429, 433 (App. 1996) (noting that

the state supreme court “has never elaborated on” what

this category means). Third, although the court claimed its

rule would not require mall owners to submit to trespasses

that “interfere with normal business operations,” 592

P.2d at 347–48, it later said that PruneYard requires

“a privately owned shopping center [to] permit peaceful

picketing of businesses in shopping centers, even though

such picketing may harm the shopping center’s business

6

interests.” Fashion Valley Mall, LLC v. NLRB, 172 P.3d

742, 750 (Cal. 2007). 3 That was because the court thought

those particular speakers had “a strengthened interest”

in their speech. Id.

In other words, California courts have struggled since

the day PruneYard was decided to draw the lines between

the rights of property owners and the constitutional rightto-trespass that PruneYard authorized.

For example, in Trader Joe’s Co. v. Progressive

Campaigns, Inc., 86 Cal. Rptr.2d 442 (App. 1999), the

court was forced to decide whether Trader Joe’s – a

chain of stores, each of which is relatively small – was a

“‘behemoth’ shopping center,” id. at 444, as the plaintiffs

claimed, or only a “modest” establishment. It ultimately

chose the latter, after consulting such factors as the

square footage, the number of shopping carts in the

parking lot, and the fact that it had no cinema (as the mall

in PruneYard did). It is plainly absurd for constitutional

rights to hinge on such matters. Worse, other California

courts have said that quite large facilities, such as a

two-story medical office with a pharmacy and a sizeable

parking lot, are also “modest,” and thus exempt from the

PuneYard principle. See, e.g., Feminist Women’s Health

Ctr. v. Blythe, 39 Cal. Rptr.2d 189 (App. 1995).

The reason the California Supreme Court felt

compelled to hedge its PruneYard opinion with these

(vague and permeable) boundaries is precisely because it

3. The Fashion Valley Mall case, of course, antedates this

Court’s contrary decision in Cedar Point Nursery.

7

recognized that, taken to its logical conclusion, the rightto-trespass notion would mean the elimination of property

rights entirely. But the ambiguity of these purported

limits obviously rendered them inadequate. Witness the

constant struggles by California’s courts to decide when

property owners do and don’t have the right to exclude

others.4

This makes it unsurprising that most states have

rejected California’s attempt (blessed by this Court) to

create what Washington’s Supreme Court called “an

entirely new kind of free speech right – one that can be

used not only as a shield by private individuals against

actions of the state but also as a sword against other

private individuals.” Southcenter Joint Venture v. Nat’l

Democratic Pol’y Comm., 780 P.2d 1282, 1286 (Wash.

1989) (emphasis in original).

Indeed, along with Washington, states that have refused

to follow California in making constitutional speech rights

into a sword against private property owners include Alaska,5

4. Recall that the right to exclude is “‘one of the most essential

sticks in the bundle of rights that are commonly characterized as

property.’” Cedar Point Nursery, 594 U.S. at 150 (citation omitted).

Cedar Point, of course, reversed a Ninth Circuit ruling which upheld

a right-to-trespass based on the PruneYard principle. Cedar Point

Nursery v. Shiroma, 923 F.3d 524, 531–32 (9th Cir. 2019).

5. Fardig v. Mun. of Anchorage, 785 P.2d 911, 915 (Alaska

App. 1990).

8

Arizona, 6 Connecticut,7 Georgia, 8 Hawai’i, 9 Illinois,10

Iowa , 11 Michigan, 1 2 Nevada , 13 New York, 14 Nor th

Carolina,15 Pennsylvania,16 South Carolina,17 Texas,18 and

Wisconsin.19

6. Fiesta Mall Venture v. Mecham Recall Comm., 767 P.2d

719, 723 (Ariz. App. 1988).

7. Cologne v. Westfarms Assocs., 469 A.2d 1201, 1208–10

(Conn. 1984); see also United Food & Com. Workers Union v.

Crystal Mall Assoc., L.P., 852 A.2d 659 (Conn. 2004).

8. Citizens for Ethical Gov’t, Inc. v. Gwinnett Place Assocs.,

L.P., 392 S.E.2d 8, 10 (Ga. 1990).

9. State v. Viglielmo, 95 P.3d 952 (Haw. 2004).

10. People v. DiGuida, 604 N.E.2d 336, 346–47 (Ill. 1992).

11. City of W. Des Moines v. Engler, 641 N.W.2d 803 (Iowa

2002).

12. Woodland v. Michigan Citizens Lobby, 378 N.W.2d 337,

358 (Mich. 1985).

13. S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243, 250–51

(Nev. 2001).

14. SHAD All. v. Smith Haven Mall, 488 N.E.2d 1211,

1215–16 (N.Y. 1985).

15. State v. Felmet, 273 S.E.2d 708 (N.C. 1981).

16. W. Pa. Socialist Workers 1982 Campaign v. Connecticut

Gen. Life Ins. Co., 515 A.2d 1331, 1338 (Pa. 1986).

17. Charleston Joint Venture v. McPherson, 417 S.E.2d 544,

548 n.7 (S.C. 1992).

18. Zarsky v. State, 827 S.W.2d 408, 411–12 (Tex. App. 1992).

19. Jacobs v. Major, 407 N.W.2d 832, 842 (Wis. 1987).

9

The reason they have given is the basic “compossibility”

problem with PruneYard. That is, one necessary elements

for the acceptability of any purported individual right

is that it is “compossible” with other rights – i.e., that

one person can exercise her rights while another person

exercises hers. Hillel Steiner, The Structure of a Set of

Compossible Rights, 74 J. Phil. 767 (1977). Only when

rights are poorly formulated – that is, when one alleged

right is not actually a right in the first place – do they come

into intractable conflict, as with the purported “right” of

speakers to trespass on the property of another. Poorly

formulated rights-claims make conflict inevitable. And

courts rejecting the PruneYard principle have remarked

upon this in various ways.

The Pennsylvania Supreme Court, for example,

observed that to view free speech as entitling a person

to use or enter the property of another for expressive

purposes would not only “deprive individuals of important

rights of freedom” – specifically, depriving property

owners of their right to express themselves by excluding

those they disagree with – but would make “significant

governmental intrusion into private individuals’ affairs

and relations [more] . . . likely to routinely occur.” Conn.

Gen. Life Ins. Co., 515 A.2d at 1335.

And the Connecticut Supreme Court observed that

the PruneYard principle is so unworkable that it forced

courts to distinguish between different kinds of property,

such as “modest” stores and “large” ones, and to apply

different rules to both – whereas “[w]e are unable . . . to

discern any legal basis distinguishing this commercial

complex from other places where large numbers of

people congregate, affording superior opportunities for

10

political solicitation, such as sport stadiums, convention

halls, theatres, country fairs, large office or apartment

buildings, factories, supermarkets or department stores.”

Cologne, 469 A.2d at 1209.

B. This Court has struggled in vain to make sense

of PruneYard.

It obviously violates the private property rights of a

landowner to compel her against her will to let another

onto her land to speak – as this Court acknowledged in

Cedar Point Nursery, 594 U.S. at 158–62. Labeling such

a trespass a “speech right” under the state Constitution

does not change this; after all, the purported right to

trespass at issue in Cedar Point was also granted by state

law. And when such a trespass goes uncompensated, it is

the equivalent of a compelled subsidy from the owner to

the speaker – in the form of the absent just compensation –

which is also unconstitutional. See, e.g., Janus v. AFSCME,

585 U.S. 878, 893 (2018).

This Court confronted a similar question in Moody v.

NetChoice, LLC, 603 U.S. 707 (2024) – where it (inevitably)

found PruneYard a stumbling block. In that case, the

state sought to force social media companies to convey

messages they did not agree with, in violation of their First

Amendment rights. In declaring this unconstitutional, the

Court tried to distinguish PruneYard on the grounds that

“the compelled access” in PruneYard “did not affect the

complaining party’s own expression,” because “[t]he mall

owner did not claim that he (or the mall) was engaged

in any expressive activity” with which the trespassing

speaker interfered. Id. at 730. But that distinction doesn’t

work, because this Court has recognized that “expressive

11

activity” also includes the “freedom not to speak,” Harper

& Row, Publishers, Inc. v. Nation Enterprises, 471 U.S.

539, 559 (1985), and a right not to be forced “to subsidize

a private message with which [one] disagree[s].” Johanns

v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005). The

fact that the mall owner did not claim to be engaging in

expression is irrelevant, because he had the constitutional

right not to engage in any expression at all – or to subsidize

the speech of the trespassing speaker.

Indeed, in Masterpiece Cakeshop, Ltd. v. Colorado

C.R. Comm’n, 584 U.S. 617 (2018), the Court rejected the

idea that compulsory subsidization of speech is somehow

rendered constitutionally acceptable by the fact that (in

Moody’s words) “compelled access [does] not affect the

complaining party’s own expression.” 603 U.S. at 730.

In Masterpiece Cakeshop, the Colorado state court held

that the bakery owner could be forced to bake a cake

celebrating a same-sex wedding, because nobody would

think that his doing so was endorsement of the message

– and it cited PruneYard for that proposition. See Craig

v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 286 ¶ 63

(Colo. App. 2015). But this Court said that factor did not

justify the right-to-trespass theory of speech that the

Colorado courts had endorsed. Indeed, Justices Thomas

and Gorsuch said “this Court has never accepted” such

an idea. 584 U.S. at 661 (Thomas and Gorsuch, JJ.,

concurring). But that’s not quite true – the Court did

accept it, in PruneYard.

In other words, efforts to keep PruneYard on the books

require unpersuasive and strained re-interpretations of

that case, and Masterpiece Cakeshop shows why the

Moody Court’s effort to that effect was so unconvincing.

12

The Moody Court – by upholding the First Amendment’s

“protection” against being forced “to accommodate

messages [one] would prefer to exclude” – was actually

contradicting PruneYard, and necessarily so, because the

right-to-trespass theory of speech is incompatible with

such protections. 603 U.S. at 710. Had the Moody Court

faithfully enforced the PruneYard rule, it would have

been confronted with a rash of unwieldy line-drawing

problems exactly like those California courts have been

forced to deal with in the past half-century: what kinds

of messages are worthy of entitling a speaker to override

someone else’s property rights? What kinds of social

media companies are big enough to be stripped of their

property rights in this way – and which are the equivalent

of “modest retail establishment[s]”? 592 P.2d at 347. These

problems are intractable – precisely because PruneYard

is incoherent.

C.

Even California courts have tried and failed

to make PruneYard work.

In fact, these and similar problems are so intractable

that California courts have themselves striven in vain to

interpret and to limit PruneYard. In Golden Gateway

Center v. Golden Gateway Tenants Ass’n, 29 P.3d 797

(Cal. 2001), a plurality of the California Supreme Court

held that PruneYard did not entitle a tenants’ association

to distribute its newsletter in a privately owned apartment

complex 20 – and in the process, it criticized and limited

20. But see Guttenberg Taxpayers & Rentpayers Ass’n v.

Galaxy Towers Condo. Ass’n, 688 A.2d 108 (N.J. App. Div. 1996)

(holding, based on PruneYard principle, that outside political

solicitors have right to express themselves in a residential complex

against owner’s wishes).

13

the PruneYard decision. Noting that PruneYard had been

“less than clear” about what kinds of speech would entitle

a speaker to trespass, or what kinds of property could

be trespassed upon, id. at 801, it set out to “rectify[]”

PruneYard’s errors. Id. at 809. See also Fashion Valley

Mall, 172 P.3d at 757 (Chin, J., dissenting) (“PruneYard

was controversial when decided. In the three decades

since then, it has received scant support and overwhelming

rejection around the country.” (citation omitted)).

Most significantly, Golden Gateway recognized that

interpreting one person’s speech rights as permitting

trespass onto the land of another undermines “private

autonomy” and “‘den[ies] to individuals the freedom to

make certain choices’” – specifically, the right of property

owners to say no to speakers of whose messages or conduct

they disapprove. 29 P.3d at 808 (quoting Laurence Tribe,

American Constitutional Law 1691 (2d ed. 1988)).

The pivotal point in PruneYard’s reasoning, said

the Golden Gateway plurality, lay in its assertion that a

shopping mall is the “functional equivalen[t]” of a public

area or forum due to “the public’s unrestricted access to

the privately owned property.” Id. at 809. Thus, the court

said, where a property owner “limits access” – as the

owner in Golden Gateway did – the PruneYard principle

could not apply. Id. at 810. 21

21. The court was also careful to reject the PruneYard

decisions’ claim that government involvement in restricting

access – through an injunction, for example – could not qualify as

the kind of state action triggering the First Amendment or other

constitutional provisions: “[that] would effectively eviscerate the

state action requirement because private property owners, for the

most part, enforce their property rights through court actions.”

Id. at 811.

14

Consequently, in Albertson’s, Inc. v. Young, 131 Cal.

Rptr.2d 721 (App. 2003), the California Court of Appeal

also refused to extend the PruneYard principle to a group

of petition circulators who stood at entrances to a grocery

store. It remarked on the vagueness of the multi-factor

“balancing” that PruneYard requires: “in balancing the

competing interest of the owner and society,” it observed,

“no single factor is determinative.” Id. at 731–32. Instead,

“[t]he extent to which private property is actually used for

expressive purposes by members of the public is relevant,

together with all of the surrounding circumstances.” Id.

at 737. But as the number of factors to be considered

increases, the subjectivity and unpredictability of the

law increases, too. See Antonin Scalia, The Rule of Law

As a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989)

(“at the point where an appellate judge says that the

remaining issue must be decided on the basis of the totality

of the circumstances, or by a balancing of all the factors

involved, he begins to resemble a finder of fact more than

a determiner of law”).

In sum, the PruneYard principle generates so many

intractable problems that it invites – even requires –

judicial policymaking. It requires courts to decide which

speech is important enough (in the court’s eyes) to entitle

speakers to trespass, what kinds of property are valuable

enough (in the court’s eyes) to entitle owners to exercise

the right to exclude, and then to weigh these factors in

light of (the court’s own views of) public policy.

These and other problems arise from the PruneYard

principle’s fundamental f lawe: its violation of the

compossibility requirement. As Justice Chin observed

in calling for the overruling of that case, “free speech

15

rights and private property rights can and should coexist.”

Fashion Valley Mall, 172 P.3d at 760 (Chin, J., dissenting).

They can coexist – but only by following the compossibility

requirement. Speakers have a right to speak, but not

on the property of another. In the case of real property,

would-be speakers wishing to express themselves “simply

[have] to do so on public property or seek permission

from private property owners.” Id. Or, of course, they can

use their own property, or pursue other means, of which

there is no shortage in the age of social media, including

websites, blogs, etc.

The PruneYard principle has many other fatal

objections. As Gregory Sisk observed in an especially

cogent analysis, the result of blurring the state action

doctrine by interpreting constitutional rights as applicable

to private as well as public actors is typically that it

dilutes the nature of the right. Uprooting the PruneYard,

38 Rutgers L.J. 1145, 1202 (2007). Because courts will

anticipate that the speech doctrines they develop must

also apply to private parties, they will tend to shape such

doctrines in accordance with the needs of those private

parties – yet these differ from the considerations that

should apply to the government. For example, courts

typically don’t “elevate efficiency and order, much

less good etiquette, above liberty in the constitutional

hierarchy of values,” but they might do so if they know

that their precedents will govern private as well as public

entities. Id. at 1203.

The result would be to embed these considerations

in speech jurisprudence in ways that “infect judicial

evaluation of the public sphere,” too. Id. That would

weaken free speech protections vis-à-vis the government:

16

if free speech obligations are imposed on property owners,

Sisk concludes, courts would begin “to allow regulation

of speech on the basis of its content,” and it would then

“be difficult to securely shut that splintered door when

governmental agents later seek to constrain expression

based upon its potential for offense and outrage.” Id. at

1204–05.

D.

PruneYard never adequately add ressed

objections to its theor y – and cr ucial

underpinnings of PruneYard have already been

overruled.

When the California Supreme Court’s PruneYard

decision was appealed, this Court upheld it despite

having reached an almost exactly contrary conclusion

eight years earlier, in Lloyd Corp. v. Tanner, 407 U.S. 551

(1972). Lloyd Corp. said the First Amendment does not

entitle “a trespasser or an uninvited guest [to] exercise

general rights of free speech on property privately owned

and used nondiscriminatorily for private purposes only.”

Id. at 568.

It rejected the argument that a shopping mall is the

functional equivalent of the town square, noting that

there was no analogy to the “company town” in Marsh v.

Alabama, 326 U.S. 501 (1946), because there, the private

owner “was performing the full spectrum of municipal

powers and stood in the shoes of the State,” whereas

shopping mall owners do nothing of the sort. Lloyd

Corp., 407 U.S. at 569. They don’t purport to exercise

anything like sovereignty, are not organizing an entire

community, or regulating land use, or operating social or

educational services: they’re simply running social media

17

companies – and competing against many other social

media companies.

Lloyd Corp. observed that private property doesn’t

“lose its private character merely because the public is

generally invited to use it for designated purposes.” Id.

Just because the public is invited to shop doesn’t make

a private store or group of stores into a public park.

“Nor is size alone the controlling factor. The essentially

private character of a store and its privately owned

abutting property does not change by virtue of being

large.” Id.

And, emphasizing the compossibility rule, Lloyd Corp.

concluded 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.” Id. at 570. The Constitution’s authors

“certainly did not think” that speech and property rights

“are incompatible. . . . There may be situations where . . .

the drawing of lines to assure due protection of both,

are not easy. But on the facts presented in this case, the

answer is clear.” Id.

PruneYard did not purport to overrule Lloyd Corp.,

or even limit it. Instead, it said the Lloyd Corp. decision

did not “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.” 447 U.S. at

81. This was the entirety of its effort to reconcile its ruling

with Lloyd Corp. After that, the Court just moved on to

discuss whether granting speakers a right to take access

to the land was a compensable taking. Id. at 81–85. It said

18

no, because this right to take access did not “unreasonably

impair the value or use of [the] property.” Id. at 83.

That takings analysis was plainly incorrect, and has

since been superseded. When, two years later, the Court

held in Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982), that being forced to install a one-inch

cable on an apartment building was a per se compensable

taking, it tried to distinguish PruneYard by saying that

Loretto involved a permanent taking, and PruneYard only

a temporary one. But after that, the Court said temporary

takings “are not different in kind from permanent takings,

for which the Constitution clearly requires compensation.”

First Eng. Evangelical Lutheran Church of Glendale v.

Los Angeles Cnty., 482 U.S. 304, 318 (1987). And then, in

Cedar Point Nursery, it made clear that when the state

gives a speaker even a temporary “right to take access” to

another person’s property, it does commit a compensable

taking. 594 U.S. at 154. 22 So, once again, efforts to

distinguish PruneYard failed – because of PruneYard’s

incoherence.

What’s more, the expressive rights of the mall’s owner

went largely ignored in PruneYard, as this Court later

acknowledged in Pacific Gas & Electric Co. v. Public

Utilities Commission of California, 475 U.S. 1, 12 (1986):

“Notably absent from PruneYard was any concern that

22. To be precise, PruneYard erred in applying the Penn

Central regulatory takings test – when, as Cedar Point Nursery

observed, a mandated trespass is not a regulatory taking, but a

“physical taking,” id. at 148 (emphasis added), which means the

“flexible test developed in Penn Central” is not applicable. Id.; see

also Horne v. Dep’t of Agric., 576 U.S. 350, 361 (2015).

19

access to [the mall] might affect the shopping center

owner’s exercise of his own right to speak: the owner

did not even allege that he objected to the content of the

pamphlets [being distributed].” And, as noted above,

subsequent decisions have sought to downplay or, as in

Moody, even to ignore the fact that the property owner in

PruneYard actually did object to being forced to subsidize

speech. 23

In sum, keeping PruneYard on life-support has

required drastically rewriting both the law and that

case’s facts.

Equally important, PruneYard simply assumed

the legitimacy of the proposition that a shopping mall

constitutes a public area. But that assumption is invalid.

As Professor Sisk notes, malls lack virtually any of the

indicia of public commons. See supra at 1190. A mall has

no “government-owned and constructed edifice at [its]

heart,” and is funded by “the patronage of customers,”

not tax dollars. Id. Mall owners must pay taxes on their

land, hire their own employees to provide security and

maintain the premises; must pay for insurance out of their

own pockets – and risk liability “if patrons are injured by

disruptive activists.” Id. at 1191. The public isn’t invited to

do what they please on the land; “‘[i]ndeed, most shopping

malls do not allow people even to walk their dogs there.’”

Id. (quoting New Jersey Coal. Against War in the Middle

23. See Brief of Appellants, PruneYard v. Robins, No. 79-289,

1979 WL 199940 (Dec. 1979) *14 (“Mr. Sahadi is being forced by

the state to use his private property as a forum for the expression

of views, and that he is deprived of the choice guaranteed him by

the First Amendment to remain silent or indifferent.”).

20

E. v. J.M.B. Realty Corp., 650 A.2d 757, 794 (N.J. 1994)

(Garibaldi, J., dissenting)). Malls close and exclude the

general public at the end of every business day, something

public streets don’t do. Sisk, supra at 1191.

In short, this Court’s PruneYard decision makes no

more sense than the California Supreme Court’s decision

did. It 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.

II. State power to expand protections for individual

rights cannot warrant violating individual rights.

States certainly can provide greater protections for

rights than are accorded by the federal Constitution. The

framers understood that “[i]n the compound republic of

America,” power would be divided between the state and

federal governments in a way that provided “a double

security . . . to the rights of the people.” The Federalist

No. 51 at 351 (J. Cooke, ed., 1961) (James Madison).

This principle of federalism is sometimes confused

with the principle of “states rights.” The distinction is

that federalism is oriented around protecting individual

rights – whereas “states rights” is organized around

21

protecting the states’ “attributes of sovereignty.” Id. No.

45 at 309 (James Madison). Genuine federalism willingly

“sacrifice[s]” the “sovereignty of the States” to the

protection of individual rights. Id. That’s why a “laboratory

of the states” argument cannot justify the continuation of

PruneYard. The freedom to speak includes the freedom

not to speak or be associated with the speech of others,

Pub. Utilities Comm’n of Cal., 475 U.S. at 11 (plurality

opinion), and the freedom not to be forced to subsidize

others’ speech. Janus, 585 U.S. at 893. These cannot

be overridden in order to “benefit” the “marketplace of

ideas.” No doubt the marketplace for goods and services

would also “benefit” from more people engaging in

commerce, but that doesn’t warrant forcing people to

engage in commerce, cf. NFIB v. Sebelius, 567 U.S. 519,

660 (2012) (joint dissent), or condemning every Motel 6 to

build a Ritz-Carlton. Cf. Kelo v. City of New London, 545

U.S. 469, 503 (2005) (O’Connor, J., dissenting).

Likewise, alleged benefits to the “marketplace of

ideas” cannot justify depriving the owners of shopping

centers of their speech and property rights by forcing

them to convey messages they disagree with – especially

when those wishing to speak have plenty of alternatives.

Simply put, “the State cannot advance some points of view

by burdening the expression of others.” Pub. Utilities

Comm’n of Cal., 475 U.S. at 20 (plurality opinion).

22

CONCLUSION

The petition should be granted.

Respectfully submitted,

Timothy Sandefur

Counsel of Record

Scharf-Norton Center for

Constitutional Litigation at

the Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amicus Curiae Goldwater Institute