Amicus Curiae Brief — Homart Development Co. v. Diamond

OLRM SE ma OS ce NTP AM, a tae ca Rl OE li a

upreme Court, U

a FILED

APR 8 197]

| E. ROBERT SEAVER, CLERK

IN THE ;

Supreme Court of the Gnited States

| Octoser Term, 1970. >

No. 1469

HOMART DEVELOPMENT CO.,

Petitioner,

i vs.

ROGER JON DIAMOND, PEOPLE’S LOBBY, INC., axp

WILLIAM DUXLER, “

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF CALIFORNIA.

BRIEF FOR THE AMERICAN RETAIL FEDERATION

AS AMICUS CURIAE IN SUPPORT

OF THE PETITIONER.

JERRY KRONENBERG,

Borovsxky, Exnruicu & KRroNENBERG,

120 South LaSalle Street,

| Chicago, Illinois 60603,

Gerarp C. SMETANA,

925 South Homan Avenue,

Chicago, Illinois 60607

Attorneys for American Retail

Federation.

pongo aygien aire eee ge preteen ete : ETM TEI METRE IRIS, 2 EA SMT NE

Dee Fle Pee

_

=

a ee

INDEX.

PAGE

Interest of the Amicus Curiae...............cceeee0. 1

Reasons for Granting the Writ................+--. aS

A. The Decision of the Court Below: A Refusal

to Give Meaningful Effect to the Rights of

Property in the Face of Competing First

Amendment—Clatims— 5-56-50 gees 8

B. The Legitimate Interests of Privately-Owned

Shopping Centers Give Rise to Rights Dis-

tinct from Those Attaching to Public Prop-

RGR a Ba oa RG a oe ee We ee ee 10

C. A Proposal for Harmonizing the Authorities

and Fairly Accommodating the Competing

Comatitutiqnal COM oie cae ea ke sce eas 15

ree ere Oe Gey Berne ner rr ENT aa 20

AUTHORITIES CITED.

Cases.

Amalgamated Food Employees Union, Local 590 v.

Logan Valley Plaza, Inc., 391 U. S. 308 (1968) ....

S dae aa nb MRO ER NTU k dRd CREE VO RG LONE aake 2, 7, 10, 16, 17

Freeman v. Retail Clerks Union, 45 LRRM 2334, 2337

(Super. Ct., 1959), rev’d on other grounds, 58 Wash.

Se Ee, Be es, ee CRE co eck ba sed sawhnane 2

In re Hoffman, 64 Cal. 2d 845 (1967) ................ 16

Marsh v. Alabama, 326 U. S. 501 ............. 9, 12, 16, 17

N. L. R. B. v. Babeock & Wilcox Co., 351 U. S. 105. .7, 15, 16

N. L. R. B. v. General Steel Products, Inc., 395 U. S.

| ee: | Re ry ae rn aay ee ar Aaa er gen 2

ll.

National Labor Relations Board v. United Insurance

Company of America, 390 U.S. 254 (1968) ........ 2

People v. Goduto, 21 Ill. 2d 605, 174 N. E. 2d 385

eo ee ee eS re eres err 3,7

Sears, Roebuck & Co. v. Carpet Layers Local Union No.

— Be ike SB h | a rere ee 2

Sinclair Company v. N. L. R. B., 395 U. S. 575 (No.

IN ar elEnkapenetwatndseunseneeeeeeieed 2

Taggart v. Weinacker’s, 397 U. 8. 223 (1970). .2, 4, 5, 16, 17

Thomas W. Finucane Corp. v. State, 52 Mise. 2d 462,

oe ae fe 5 Bis Ay | ere 2

Wolin v. Port of New York Authority, 392 F. 2d 83

EE oe eS herr er eee 16, 18

MISCELLANEOUS.

Applebaum, Consumption and the Geography of Retail

Distribution in the United States, Michigan State

University Business Topics, Summer 1969, pp. 28-29 3

IN THE

Supreme Court of the Gnited States

Ocroser Term, 1970.

No. 1469.

HOMART DEVELOPMENT CO.,

, Petitioner,

vs.

ROGER JON DIAMOND, PEOPLE’S LOBBY, INC., anp

WILLIAM DUXLER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF CALIFORNIA.

BRIEF FOR THE AMERICAN RETAIL FEDERATION

AS AMICUS CURIAE IN SUPPORT

OF THE PETITIONER.

INTEREST OF THE AMICUS CURIAE.*

The American Retail Federation (hereinafter referred

to as the ‘‘Federation’’), is an organization composed of

seventy-eight national and state retail associations. The

membership of these associations consists of a wide variety

of retail businesses ranging in size from small local stores

to large national chains, representative of all aspects of the

retail industry. Through these associations, the Federa-

tion represents approximately eight hundred thousand re-

tailers with close to six million employees.

* This brief is filed with the express written consent of counsel

for both Petitioner and Respondents, in accordance with Rule

42(2) of the Court.

2

The Federation has appeared as amicus curtae before

this Court in various matters of concern to its members

and which have affected those members significantly in a

wide variety of business relationships.’ The instant case

is decidedly within that category. is

The interest of the Federation in urging reversal of the

decision of the court below is predicated upon the substan-

tial and damaging impact which that decision, if allowed to

survive, will have on the retail industry.

While this case involves a shopping center, that fact

does not properly delineate its effect on the industry. The

term ‘‘shopping center’’ can be applied to any number and

variety of merchandising and service operations. Indeed,

there is no legally acceptable definition of the phrase

‘‘shopping center.’”

Shopping centers can be of practically any size, ranging

from a collection of large national retail operations to local,

neighborhood centers with but a few small independent

stores.2 In fact, relatively smaller shopping centers pre-

1. For example, the Federation has recently filed briefs amicus

curtae in National Labor Relations Board v. United Insurance

Company of America, 390 U. S. 254 (1968) ; Amalgamated Food

Employees Union, Local 590 v. Logan Valley Plaza, Inc., 391 U. S.

308 (1968) ; Sinclair Company v. N. L. R. B., 395 U. S. 575 (No.

585) (1969); NV. L. R. B. v. General Steel Products, Inc., 395 U. S.

575 (No. 573) (1969); Sears, Roebuck & Co. v. Carpet Layers

Local Union No. 419, 397 U. S. 655 (1970) ; Taggart v. Weinack-

er’s, 397 U. S. 223 (1970).

2. Freeman v. Retail Clerks Union, 45 LRRM 2334, 2337

(Super. Ct., 1959), rev’d. on other grounds, 58 Wash. 2d 426, 363

P. 2d 803 (1961).

2. Cf. eg., the ‘‘shopping center’’ described in Thomas W.

Finucane Corp. v. State, 52 Mise. 2d 462, 276 N. Y. S. 2d 225

(Ct. Cl., 1966) an eminent domain case, which consisted of a one-

story masonry block building containing 17,463 square feet. There

were three tenants in the building—a drug store, a chain grocery

store and a dry cleaning establishment.

3

dominate the field.‘ Shopping centers can also be of

virtually any shape. Thus, the only common characteristics

of all shopping centers are that they:

1) offer a variety of goods and services to the public,

2) are located on tracts of land with definite estab-

lished boundaries, and

3) provide parking areas for their customers.

Significantly, these are characteristics also present in, and

not materially different from, other types of retail enter-

prises or establishments which are not generally regarded

as ‘‘shopping centers’’.

For example, there are many single unit department

stores or discount houses which offer not only their own

merchandise, but also the merchandise of others through

leased departments or concessions and which have parking

areas open to the public. As one commentator observed,

such an enterprise, while not generally considered to con-

stitute a shopping center, ‘‘is essentially a shopping center

by itself under one roof’’.’ In addition, there are large

single retail stores, frequently a branch of a national chain,

located on their own tract of land with a substantial public

parking area.® There are retail enterprises which, instead

of being constructed on a horizontal plane, as in the case

of the sprawling suburban shopping centers, are con-

structed on a vertical plane due to space limitations such

as those existing in downtown urban areas. Similarly situ-

4. See Applebaum, Consumption and the Geography of Retail

Disiribution in the United States, Michigan State University Busi-

ness Topics, Summer 1969, pp. 28-29.

5. Id., at 31.

6. See, for example, People v. Goduto, 21 Ill. 2d 605, 174 N. E.

2d 385 (1961), cert. den., 368 U. S. 927, involving a Sea.s, Roe-

buck and Co. retail store. Such stores are generally described as

“*free standing’’ stores. Since these stores (as well as discount

stores) are usually large operations, the goods and services offered

by them will frequently substantially exceed those offered in the

smaller or even medium size ‘‘shopping centers’’.

4

ated also are those multiple stores, businesses and offices

located within a single building with a common entrance-

way, stairwell and corridors, or the multiple manufacturing

or retail establishments located within industrial parks and

connected only by means of a series of private roads front-

ing one public artery. All such enterprises, regardless of

size, shape, or the terms used to describe them, are open

to the community and function as ‘‘shopping centers’’, and

may thus be subject to the same demands as those which

gave rise to the instant case.

The significance of this extended discussion of the nature

of ‘‘shopping centers’’ is twofold. First, the task of de-

fining a ‘‘shopping center’’ or of distinguishing such a

commercial concept from similar or related business con-

figurations which do not constitute shopping centers is, at

best, highly complex, if feasible at all. Second, the enor-

mous variety of those operations which have or may be

described as ‘‘shopping centers’’,—whether that variety

is viewed in terms of their location, size, function or manner

of construction,—is such that a single rule relating to all

‘‘shopping centers’’ without further distinctions or qualifi-

cations would necessarily constitute an inappropriate basis

for adjudicating individual disputes. An illustration of

these difficulties was recently presented to this Court in

Taggart v. Weinacker’s, 397 U. S. 233. That case involved

a single retail store containing a supermarket and a small

drug department, all owned and operated by the same

company. For the convenience of shoppers, the owner

provided a small adjacent parking lot able to accommodate

only two rows of automobiles. Adjoining the parking lot

were public sidewalks. This store became involved in a

labor dispute, resulting im picketing by a union in the

parking lot and on the private walkway leading from the

lot to the store. The union did not picket on the public

sidewalks, although, given the nature of the premises, they

H)

would have been equally visible there with equal access to

the store’s customers. The union sought to obtain review

here of its state court trespass conviction, alleging its

Constitutional right to engage in First Amendment activity

on the premises of the ‘‘shepping center’’. (This Court

granted the petition for writ of certiorari, but subsequently

declined to reach the merits, concluding that the issue had

become moot and the writ had been improvidently granted.

The Court did not, however, vacate the lower court’s

decision.)

If the single store involved in Taggart may be said to

constitute a ‘‘shopping center’’, a description which was

applied to it even in this Court’s decision, then the entire

concept becomes meaningless; the mere fact of providing

parking facilities for shoppers, however limited in size,

would create a ‘‘shopping center’’. It is for this reason

that the Federation believes that the ultimate disposition

of the issue posed in this case should not be limited or ad-

dressed, without qualification, to a monolith denominated

‘‘shopping center’’. Our own proposed formulation of

what be believe to constitute an appropriate rule of law

(Part C, infra) is not so limited.

The interest of the Federation stems from the substan-

tial and far-reaching consequences that any decision here

may have for all methods of retail operation, not merely

the traditional and more easily identified ‘shopping

centers’’. The Federation is concerned that this Court, in

formulating principles to resolve the instant controversy,

should be aware of their ramifications on all of these various

retail establishments as they may he affected by entry upon

their property by any number of organizations or indi-

viduals desiring to propagandize an unlimited variety of

messages.

The latter point is of particular concern to the Federa-

6

tion’s members. For, apart from the difficulty of defining

what a shopping center is, there is a substantial problem

to retailers in coping with the number and variety of

groups which would seek access to their private property in —

order to exercise asserted First Amendment rights. In an

age of increasingly vocal dissent and social polarization,

this represents a separate issue of importance to all retail-

ers who may, gven the view of the court below, be required

to permit their property to become a battleground for op-

posing propagandists to the detriment of their own vital

interests and those of the consumers who come upon their

property in order to make purchases in attractive and

peaceful surroundings.

Accordingly, the Federation supports the effort of peti-

tioner, Homart Development Co., to achieve a resolution

of the series of vexing and important problems presented

by this case and to obtain the reversal of the decision of

the lower court which fails to resolve those problems in a

manner which accords adequate recognition and protection

to the legitimate interests of all retailers.

REASONS FOR GRANTING THE WRIT.

This case presents for decision an unresolved conflict

between rights guaranteed in the First, Fifth, and Four-

teenth Amendments of the United States Constitution. The

importance of obtaining a decision herein from this Court

lies not only in the need to accommodate the substance of

these conflicting Constitutional guarantees, but also be-

cause the problem posed in this case will continue to arise

with increasing frequency in the future.

The conflict involved here occurs when groups seek to

exercise First Amendment rights on the private property

of another for purposes unrelated to the uses to which that

property is put,’ while the proverty owner seeks to limit

that absolute exercise by his own reliance on the property

rights which are created by state Jaw and which are recog-

nized and guaranteed in the Fifth and Fourteenth Amend-

ments.®

This conflict cannot be resolved by a total subjugation of

one set of rights to the other; such a solution would ec avert

the existence of a Constitutional right to a merely qualified

privilege. A balance must, therefore, be struck in which the

essence of both guarantees may be preserved. The Court

has not as yet sought to do so, having expressly reserved

that duty in its Logan Valley decision. The court below,

faced the described Constitutional conflict, declined to effect

any such balance by its refusal to place any limits on the

right of persons to engage in the peaceful exercise of First

7. Unlike the problem presented here, this Court has already

addressed itself to the situation where the exercise of First Amend-

ment rights are generally consonant with the ordinary use to which

the private property is put. Amalgamated Food Employees v.

Logan Valley Plaza, Inc., 391 U. S. 308.

8. NLRB v. Babcock & Wilcox Co., 351 U. S. 105; People v.

Goduto, supra, fn. 6.

8

Amendment rights on the property of a privately owned

shopping center.®

A. The Decision of the Court Below: A Refusal to Give

Meaningful Effect to the Rights of Property in the Face

of Competing First Amendment Claims.

The Court below framed the issue before it in terms of

a negative absolute:

‘*May the owners of a privately owned shopping center

deny all use of their premises to persons who desire,

on those premises, to engage in First Amendment ac-

tivities unrelated to the business of the center?’’ (Em-

phasis added.) (A 4)

An implication of the issue, as framed, is that even if

those owners may not deny all such use of their premises,

they might Constitutionally deny some use. The nature of

the court’s discussion of this issue reveals, however, that in

its view the matter is not susceptible to compromise or ac-

commodation, for the essence of the parties’ competing

Constitutional interests is seen as an absolute conflict:

‘‘To be balanced against the interest of plaintiffs in

the exercise of their First Amendment rights at the

Center is the interest »f defendants in the complete

prohibition of non-business related activities.’’ (Em-

phasis added.) (A 15)

It does not follow, however, that giving effect to a prop-

erty owner’s fundamental interest in the use and preser-

vation of his property necessarily requires a total prohibi-

9. While the court did indicate that the First Amendment

activity is subject to ‘‘reasonable regulation’’ as to the number

of persons permitted and the length of time and locations at

which they may be present, this regulation goes only to the manner

in which the activity is conducted, and not to the absolute right

of such persons to be present at some time at. some locations.

In finding the existence of this absolute right, the court failed to

accord due regard to the property interests thereby adversely

affected.

9

tion on others’ unconsented First Amendment use of that

property. The recognition and protection of the essential

emoluments of property ownership can be achieved absent

such unqualified control.’

However, when the court below took the view that the

‘right of property’? was synonomous with such absolute

control, then, when that right conflicted with an asserted

First Amendment right, the court could not seek a balancing

of those opposing rights but was left only with the duty

to determine which was superior. That is, in the court’s

view, if the interests of property owners would not permit

them to assert absolute dominion over their property so

as to bar all unrelated First Amendment activity, as in

one’s home, then those interests were insufficient to effect

a bar of any such activity."

Pursuant to this view, challenged here as a matter of

policy and precedent, the court below had only to deter-

mine whether the defendant shopping center could ‘‘deny

all uses’’ of their premises to plaintiffs in order to resolve

the instant conflict, rather than to seek a meaningful balanc-

ing or accommodation of opposing rights and interests.

Accordingly, the court interprets the relevant authorities

to preclude a shopping center from imposing a ‘‘blanket

and total prohtbition’’ on the exercise of First Amend-

ment rights on shopping center property (A. 8). Similarly,

the court characterized Marsh v. Alabama, 326 U. S. 501,

10. A proposed rule of law which is derived from and harmon-

izes the outstanding authorities is set forth in part C, infra. The

proposal recognizes the need for some relinquishment of such

control without depriving property owners of the basic freedom

to manage their property as they deem appropriate in furtherance

of their legitimate business interests.

11. The court here refers to the owners’ right to prevent

others from coming onto their property to engage in First Amend-

ment activity, not to the nature of the regulation of such activity

once they are there.

10

to hold that a member of Jehovah’s Witnesses could not

be ‘‘absolutely prohibited’’ from engaging in First Amend-

ment activity there, quoting in support this Court’s obser-

vation that ‘‘Ownership does not always mean absolute

dominion’’ (A. 8, 9). This Court’s holding in Amalga-

mated Food Employees v. Logan Valley Plaza, 391 U. S.

308, was said to invalidate a shopping center’s ‘‘ blanket

prohibition of picketing on its premises’’ (A. 10).

Thus, having concluded that no shopping center may

prohibit all First Amendment activities on its premises,—

which was the issic before the lower court,—the further

conclusion followed tat no such activity may be prohibited,

subject to certain regulation, in view of the superior claim

of the First Amendment and the insubstantia! nature of

shopping centers’ competing property interests.

The Federation believes that this judgment, in a case

of first impression, should be reviewed by this Court.

There is a substantial need for clarification of the lower

court’s views (1) that a compromise of rights is inap-

propriate here given the nature of the conflicting interests;

(2) that the cited precedents of this and other courts compel

the conclusion that the inability to bar any First Amend-

ment activity follows from the inability to prohibit all,

and (3) that private shopping centers must, therefore, be

treated, for these purposes, as if they were public property.

B. The Legitimate Interests of Privately-Owned Shopping

Centers Give Rise to Rights Distinct from Those At-

taching to Public Property.

The rationale for the lower court’s decision that no

peaceful First Amendment activities may be prohibited

(as opposed to ‘‘regulated’’) on the premises of a privately-

owned shopping center consists in the court’s conclusion

that such shopping centers are legally equivalent to public

11

streets, parks and ‘‘similar public places traditionally

associated with the exercise of First Amendment rights’’

(A. 8). The court supports this conclusion by noting that

‘‘the public’’ is invited to these shopping centers which

are said to function analogously ty the ‘‘traditional town

square’’ or ‘‘town center’’. By viewing the case in that

light, the court below not only withheld from privately

owned centers the enjoyment of those rights normally

associated with private ownership, but went so far as to

impose upon those owners the same duties with respect

to the use of their private property as is borne by the

State with respect to public property.

That result is a product of a series of dubious premises

of such far-reaching impact as to compel this Court’s

attention.

Initially, a rule which describes ‘‘shopping centers’’ as

analogous to ‘‘traditional’’ town squares or to town centers

is guilty of over-reaching. No historical practice has or

could be shown to support such an analogy. Indeed, the

enormous diversity in size, shape and location of ‘‘shopping

centers’’, noted supra, precludes referring to them or

treating them as if they were all totally alike for any

purpose. The social role of a huge shopping complex in

a small town otherwise lacking a ‘‘town square’’ is en-

tirely different, for example, from a complex of two or

three small stores in the heart of a large city; yet both

are ‘‘shopping centers’’ and, in the view of the court below,

both become ‘‘public’’ ‘‘town centers’’.

Nor should the fact that shopping centers invite members

of the public onto their premises convert those premises

into the equivalent of public property. That invitation is

not extended to all members of the public for all purposes.

It is extended to consumers desiring to transact business

with, and avail thernselves of the services of, the enter-

12

prises assembled there. No such invitation is extended to

those members of the ‘‘public’’ who would use the centers’

premises for purposes of their own which were unintended

by the owners, were unrelated to the owners’ reason for

creating the center, and which would actually or potentially

interfere, to some extent, with the business object for which

it was built. While this Court recognized, in Marsh v.

Alabama, supra, that an owner who invites members of

the public onto his property assumes the duty to honor the

statutory and Constitutional rights of those whom he

invites, that decision did not extend such a duty to all

other persons for all purposes. Nor did that decision, or

any other decision of this Court, hold that all private

property to which members of the public are invited there-

by lose their private character, becoming the functional

equivalent of public streets or parks.

In holding that ‘‘shopping centers’’ may not prohibit

any First Amendment activities which may not ‘‘abso-

lutely’’ be barred on the public streets, the court below

imposed upon the private owners of such centers the duty

to permit and tolerate on their premises the expression of

any views by any groups on any subjects which were not

themseives unlawful or likely to result in personal or

property damage. The effect of this duty is dem. astrably

great and, potentially, seriously adverse to the interests

of the property owners.

Even the court below understood this duty to apply

‘*. . . without discrimination to all varieties of chari-

table, religious, paternal, social and political groups

that seek to use the Center’s property for any forms

of solicitation or discussion.’’ (Emphasis added.)

(A. 5)

The combination of the enormous numbers of groups

and causes described in this quoted language, together with

the fact that the contemporary social climate gives rise to

13

ever-increasing forms and bases for protest and dissent,

suggests the burden which the decision of the court below

would place upon private shopping centers.

In holding that all such centers—whether large or small,

urban or suburban, in cosmopolitan or parochial neighbor-

hoods, isolated or in dense and competitive areas,—must

function for First Amendment purposes as if they were

public parks or streets, the court below concludes that

those centers have no meaningful property interest in a

reasonable limitation (as contrasted with a total prohibi-

tion or mere regulation) of strangers’ right to engage in

unrelated First Amendment activities on their premises.

The Federation challenges that conclusion and believes it

to be an issue of sufficient significance, philosophically and

practically, to warrant this Court’s attention.

In practical terms, it seems fair to assume that those

who come to do business at a shopping center do not

have unlimited time or patience; mothers of young children,

for example, are limited by the periods the children are in

school and by the time requirements of other chores. To

the extent these consumers’ time and attention are occupied

by matters unrelated to the purpose of the center, or to the

extent they choose to go elsewhere in order to avoid a

possible confrontation of controversial or conflicting

ideological positions, the center suffers some jeopardy.

While it is true that the court below would prohibit such

unrelated First Amendment activity as would result in

‘destruction of or wndue interference with normal business

operations’’ (A. 20), this concession to the property in-

teresis of the centers’ owners does not reach the principal

jeopardy which would result from the adoption of the

lower court’s holding. For that jeopardy does not consist

primarily in the relatively fewer instances in which First

Amendment activity would totally or virtually obstruct

14

business operations but in the lesser but regular and con-

tinual interference which would necessarily result from

the presence on center property of every group seeking

to propagandize any cause in the name of First Amend-

ment rights.

The elief of the court below that the absolute right of

such groups to some access to private center property would

result in no damage to private interests and does not raise

any ‘‘meaningful claim’’ to the protection of those jeopar-

dized interests, appears to the Federation to be unwar-

ranted and unrealistic. Moreover, the lower court’s asser-

tion that any threatened jeopardy may be alleviated through

the regulation (as opposed to some prohibition) of the activ-

ities of the countless groups which will seek access to shop-

ping centers is similarly unwarranted. No ‘‘regulation’’ will

go so far as to render ineffective the regulated groups’

object to inform, convert, solicit or propagandize. There-

fore, whatever limit may be imposed upon the number of

persons permitted to engage in these activities, or the hours

and places in which they will be permitted to do so, the end

result will be that sufficient persons will remain at sufficient

times and at sufficient locations effectively to divert the

attention of shoppers or to consume their available time or

to annoy them or inflame their antagonisms or to induce

them to trade in other less volatile or more peaceful sur-

roundings. Accordingly, ‘‘regulation’’ may prevent total

disruption of a center’s business but will not eliminate

lesser damage which, continued over a period of time, may

be both quite substantial and, given the availability of effec-

tive alternative public forums, wholly unnecessary.

A fair balancing between private landowners’ vital and

legitimate property interests and the competing guarantees

to others contained in the First Amendment requires a level

of analysis beyond the specious conclusion that all shopping

centers are like town squares, town centers, public streets

15

and parks and constitute public property without a need

for special provision to be made for the specific private

business purpose for which such centers were created.

C. A Proposal for Harmonizing the Authorities and Fairly

Accommodating the Competing Constitutional Claims.

Courts’ analysis of the impact of the First Amendment

upon the right of private landowners reasonably to restrict

the use of their premises has suffered from two infirmities.

First, cases have been decided either on the basis of ‘‘rules’’

or ‘‘tests’’ which were only descriptions of results reached

in particular factual contexts or on the basis of fictional

assumptions which were elevated to the status of rules of

law. And second, courts have tended, as did the court be-

low, to ignore this Court’s direction in NLRB v. Babcock

& Wilcox Co., 351 U. S. 105, to reach an accommodation

with as little destruction of one competing right as is con-

sistent with the maintenance of the other.

The Federation believes that a fair and reasonable anal-

ysis of the principal decided authorities concerning the

instant issue, in the light of the direction of Babcock &

Wilcox, yields a rule of law fairly balancing the competing

interests without reliance on descriptive rules and legal

fictions:

Owners of private establishments catering to the public

may deny the use of their premises to those who wish

to use those premises for First Amendment activities

unrelated to the purpose for which the public is invited

except when no reasonably effective alternative means

of communication is available.

This rule achieves a fair balance between the opposirz

Constitutional grants. Those wishing to exercise First

Amendment rights are guaranteed the right effectively to

do so, including, as a last resort, the right to use others’

16

private property; those who own property may limit the

propaganda use to which strangers may put that property,

except when no other reasonably effective means is avail-

able for the expression of legally permissible views.

In practice, courts have followed this rule irrespective

of the rhetoric they have employed. Thus, in Marsh v.

Alabama, the use of private property was permitted since,

all the town’s property being private, no alternative was

available for the effective expression of propaganda to the

town’s residents. In Logan Valley the union’s publicity,

having been directed to prospective customers of a specific

store, could not reasonably effectively have been made other

than at the store’s location at a time when those customers

could receive and be infiuenced by the union’s message.

Similarly, in both Wolin v. Port 0f New York Authority,

392 F. 2d 83 (CA 2, 1968), and In re Hoffman, 64 Cal. 2d

845 (1967), the rights granted anti-war groups to picket

the premises involved in those cases are consistent with

the judgment that the object of the demonstrations,—.e.,

to reach and influence Vietnam-bound servicemen,—could

be effectively achieved only at the time and place where

those servicemen were assembled.

In accord with these decisions granting the right to propa-

gandize on private property, those other courts which have

refused to permit such conduct have done so in factual

contexts in which there existed reasonably effective alterna-

tive means to the use of such private property. Thus, for

example, in Babcock & Wilcox Co., this Court emphasized

both the existence of such reasonable alternatives and the

_ consequent absence of necessity to use private property

*"in order to achieve effective communication of the views

sought to be expressed. And the application of this pro-

posed rule to Taggart v. Weinacker’s, supra, similarly

justifies the state court’s decision there, undisturbed by

this Court, finding the union’s picketing of private retail

aT .

property to constitute a trespass rather than protected

First Amendment activity; for in Taggart the union’s use

of private property was unnecessary since the availability

of the adjoining public sidewalks gave the union a wholly

effective alternative locus from which to reach the very

persons with whom it sought to communicate from the

private parking lot.

The fact that the rule proposed here explains and har-

monizes the results reached in each of these cases while

striking a reasonable balance between the conflicting Con-

stitutional guarantees involved argues strongly for its

express adoption by this Court in the instant case. A

secondary benefit which would be derived from doing so

consists in the fact that courts would then become free to

decide cases without a forced reliance on legal fiction or on

essentially post hoc rules.

When this Court in Logan Valley described shopping

centers as ‘‘functional equivalents’’ of municipal property,

its analogy referred only to the private municipal property

involved in Marsh and was, therefore, saying only that in

appropriate circumstances private property could be treated

as if it were public. The Court made no fixed determina-

tion as to what those circumstances would be. What is

clear, as was noted before, is that this Court did not con-

clude that whenever any private property is open to the

public, it automatically and totally loses its character as

‘*private’’ ana becomes “*pubjic”’ for all purposes. In >

sum, reference to ‘‘functional equivalence’? does not con-

stitute an analytical tool for determining when private

property is subject to public First Amendment use, but

merely describes the conclusion, otherwise arrived at. that

under particular factual circumstances it may be so used.

Similarly, the fact that the views sought to be expressed

are ‘generally consonant’? with the use to which the private

18

property is put should not give rise to a rule legitimizing

the public use of private property. Nor should such public

use be barred, without further inquiry, because there exists

no such general consonance. Let it be assumed, as a varia-

tion of the facts in Wolin, that servicemen bound for Viet-

nam were assembled as a group only in a private restaurant

located in a shopping center, but that their times of de-

parture were so staggered that nowhere else would they

appear as a group. Would it not be reasonable to permit

an anti-war demonstration directed to them to be conducted

on center property near the restaurant’s premises, irre-

spective of the fact that the uses to which the center and

restaurant are put are unrelated to the purpose of the

demonstration, simply because no other site and time

affords an effective means of communication with those

servicemen? Converselv, would it not also be reasonable to

bar such demonstrations on private property, even though

the use of that property is directly related to the purpose

of the demonstration, when it appears that there do exist

reasonably effective alternative means to achieve the same

communication without invading private property?

The special emphasis which has been placed upon the

‘‘general consonance’’ of the First Amendment purpose

and the private property’s use appears to be predicated

upon the assumption that where such a relationship exists,

the private premises constitute the only means for effective

publicity. To the extent that assumption is supported by

the facts in any given case, then the public use of private

property seems justified. However, instead of raising an

assumption to the status of a Constitutional rule, the de-

cision-making process should focus directly on the principle

which underlies that assumption,—that First Amendment

rights may impinge on property rights only when, in fact,

no reasonably effective alternative means of communication

are available.

19

Apart from achieving a fair balance of competing rights

without destroying either, the proposed rule yields addi-

tional benefit. The holding of the court below allows every

group or cause which would be permitted in a public park

to come upon private shopping center premises, subject to

reasonable regulation. Given the virtually unlimited num-

ber of such groups and causes and the potentially divisive

and inflammatory effect many would have on their con-

sumer audience, the problem of ‘‘regulation’’ becomes a

very serious one.’* While the proposed rule would not

avoid that problem altogether, the mere fact that it would

limit the number of such incursions to those instances where

no reasonably effective alternatives exist would render that

problem more manageable and susceptible of a more re-

laxed and thoughtful disposition whenever it did arise.

Nor would courts become flooded with suits seeking a

determination of the validity of the multitude of varying

regulations which the various ‘‘shopping centers’’ would

otherwise continually be required to improvise.”

Should the rule proposed here be adopted, its application

to the instant case would appear to require a reversal of

the decision of the California Supreme Court. Respond-

ents’ appeal was not uniquely or solely directed at those

12. In addition to judgmental decisions secxing the least dis-

ruption of center business consistent with effcc.ive First Am-~d-

ment use, ‘‘regulation’’ also involves maintenance and policing

costs which must be borne by those whose businesses are, to some

extent, being disrupted. There is also the matter of liability for

injury both to consumers and to those seeking to exercise First

Amendment rights, and added insurance costs, among other prob-

lems and costs related to or involved in such ‘‘regulation’’.

13. Assuming in the instant case, for example, that plaintiffs

would be deemed entitled to make their desired use of Inland

Center property, a question would arise as to whether they may be

restricted to the parking lots or the entrances to the shopping

area itself in order to minimize business disruption, cr whether

they have a right to congregate within the enclosed aisleways from

which the Center’s stores flow without physical barrier, as the

Respondents continue to believe they may do.

20

consumers doing business at the shopping center. There

were numerous alternative avenues available for effective

communication with those persons whom Respondents de-

sired to reach. These included all the mass media; public

streets and parks; the public property adjoining every

large assemblage of persons attending, for example, con-

certs and sporting events; and direct mailing to the homes

of prospective voters, among other choices.

Therefore, to restrict Respondents to the use of these

available and effective alternatives would neither deprive

them of the benefits guaranteed in the First Amendment

nor deprive Petitioner of the recognition and protection of

his legitimate, and similarly guaranteed, property rights.

CONCLUSION.

For the reasons stated herein, the Court is respectfully

urged to grant the instant Petition for Writ of Certiorari

and, on consideration of the merits of the case, to adopt the

proposed rule of law as a Constitutionally sound accommo-

dation of competing rights and interests.

Respectfully submitted,

JERRY KRONENBERG,

Borovsky, Exuruich & KroNENBERG,

120 South LaSalle Street,

Chicago, Illinois 60603,

Geraxp C. SMETANA,

925 South Homan Avenue,

Chicago, Illinois 60607

Attorneys for American Retail

Federation.

a nee