Amicus Curiae Brief — Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of American Local 586 (2009) (No. 235)

Supreme Court, US.

uO ) SEP 25 2009

No. 09-235 OFFICE OF THE CLERK

eee

In the

Supreme Court of the Anited States

,*%

4

MACERICH MANAGEMENT CO., et al.

Petitioners,

v.

UNITED BROTHERHOOD OF CARPENTERS,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

>

vw

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

A

-

DEBORAH J. LA FETRA

Counsel of Record

HAROLD E. JOHNSON

TIMOTHY SANDEFUR

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae Pacific Legal Foundation

1

QUESTIONS PRESENTED

In Prune Yard Shopping Center v. Robins, 447 U.S.

74 (1980), this Court held that states may require

private shopping malls to allow public access to the

malls’ common areas for purposes of engaging in

expressive activities. The expressive activity at issue

in Prune Yard—soliciting signatures for a political

petition—was in support of a cause that the mall

owners did not oppose and that did not conflict with

the mall’s commercial interests. The present case

raises the following questions, unanswered by

Prune Yard:

1. Does a state law requirement that a private

shopping mall provide access for expressive activity

violate the mall owners’ property rights under the

Fifth Amendment where the activity—here, urging

patrons to boycott the mall and its stores—conflicts

with the mall’s commercial interests?

2. Does a state law requirement that a private

shopping mall provide access for expressive activity

violate the mall owners’ First Amendment free speech

rights where the expressive activity supports a cause

the mall owners oppose?

3. Should Prune Yard be overruled?

n

TABLE OF CONTENTS

Page

QUESTIONS PRMmmet Eee 6... ee ee ees i

TABLE OF AUPE reepeeeeee oc ces cette ees lll

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

SUMMARY OF REASONS FOR

GRANTING THE PETITION ............. 2

ARGUMBGWE eos eww eee 2

I. THE COURT SHOULD GRANT

CERTIORARI TO REVISIT, AND

OVERRULE, PRUNEYARD v. ROBINS ..... 2

A. PruneYard’s Takings Clause

Analysis Was Incoherent and

Has Since Been Abrogated............. 4

Il. THIS COURT SHOULD GRANT

CERTIORARI TO UPHOLD THE

FIRST AMENDMENT RIGHTS

OF SHOPPING MALL OWNERS ......... 12

A. First Amendment Rights,

Including the Right Not To

Speak, Apply to Corporate Speech

as Well as Individual Speech .......... 12

B. A Government Mandate That Private

Property Owners Endure Offensive,

Provocative Speech on heir Premises

Violates the First Amendment ........ 16

lil. THE CRITERIA FOR OVERRULING

PRUNEYARD HAVE BEEN MET ......... 21

CONCL Umer wk. 24

nl

TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Bd. of Educ.,

Be Re 2b. oy; er 3, 15

Albertson’s, Inc. v. Young,

107 Cal. Ape. 4th 106 (003) .. . ccc ncn 23

Boy Scouts of America v. Dale,

a Cl BR gg cc ec cnawscveesiseusees 3

Brown v. Legal Found. of Washington,

Se Ue A Ce bv act ck ed aeessvacecss> OS

Chicago Teachers Union, Local No. 1, AFT,

AFL-CIO v. Hudson, 475 U.S. 292 (1986) ...... 3

Center v. Robins, 447 U.S. 74 (1980) ............ 2

Citizens for Ethical Gov't, Inc. v.

Gwinnett Place Assocs., L.P.,

SOs BT. Ome. TOO nck cece ceases 11, 23

Cologne v. Westfarms Assocs.,

469 A.2d 1201 (Conn. 1984) ............. 10, 23

Consolidated Edison Co. v. Pub. Serv.

Comm’n of N.Y., 447 U.S. 530 (1980) ......... 12

Cross v. Texas, 2004 WL 1535606

(lem: Ae, Gb PO ce oe ee eek ei dhews es 1

Eastwood Mall, Inc. v. Slanco,

626 N.E.2d 59 (Ohio 1994) .............. 11, 33

Fashion Valley Mall, LLC v. N.L.R.B.,

SS tad, SE Be Cee sw kk va eh ee ee eo ee 10

lv

TABLE OF AUTHORITIES—Continued

Page

First English Evangelical Lutheran

Church of Glendale v. Los Angeles

County, 482 U.S. 304 (1987) .............. 7, 32

First Nat'l Bank of Boston v. Bellotti,

Ee LS Sr rr 12

Golden Gateway Center v. Golden

Gateway Tenants Association,

BO Cl. SE BOIS CE 6 wc ect es 1, 10, 23

Harper & Row Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539 (1985) ............ i3

Hudgens v. N.L.R.B., 424 U.S. 507 (1976) ..... 3, 16

Hurley v. Irish-American Gay, Lesbian

and Bisexual Group of Boston, Inc.,

hoe yee, 14-16, 22

Kaiser Aetna v. United States,

ee ee rs 3

Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002),

cert. dismissed as improvidently granted,

ie Grr, ee Cs be ee ses eee ht oes 20-21

Keller v. State Bar of California,

ee a I oo cs ine ee ee ewes 3

Lawrence v. Texas, 539 U.S. 558 (2003) ......... 21

Lloyd Corp., Ltd. v. Tanner,

eRe Ro ol yy 3

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982) ....... 7. 14. 23

Vv

TABLE OF AUTHORITIES—-Continued

Page

Lucas v. South Carolina Coastal Council,

Se RROD. onc os cet e ctw wenees 6

Miami Herald Publ’g Co. v. Tornillo,

WE Ge, OE CEPTS) cv cc ca cere cece 13, 18, 22

New York Times Co. v. Sullivan,

et ND og ne bk ee ce se be cee new es 20

Pac. Gas & Elec. Co. v. Public Utils.

Comm'n, 475 U.S. 1 (1986) ......... 12-13, 15-16

Pelman ex rel. Pelman v. McDonald’s Corp.,

452 F. Supp. 2d 320 (S.D.N.Y. 2006) ......... 19

Penn Central Transp. Co. v. New York,

a eee 6

Planned Parenthood of Se. Pennsylvania v.

Casey, 606 U.S. 833 (19082) ...... 1... eee eeee 21

PruneYard Shopping Center v. Robins,

bs Se Co, ae 1, 4, 7, 13-16

Robins v. PruneYard Shopping Center,

ree Gy ars 1]

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg'l Planning Agency, 535 U.S. 302 (2002) ....7

The Railroad Tax Cases,

eS A, eae ee 1 BR. . rr 12

United States v. James Daniel Good

Real Property, 510 U.S. 43 (1993) ............34

United States v. United Foods, Inc.,

ee ee, ee ES gs akc 5 4k ee kee een ee

a

fl

roy

-

‘~

~

*~

vl

TABLE OF AUTHORITIES—Continued

Page

Venetian Casino Resort, L.L.C. v. Local

Joint Executive Board of Las Vegas,

ee ee ea ess besos eee 1

Vulcan Materials Co. v. City of Tehuacana,

NGe F.0G Gee (oth Cir. 2004)... wc cc ees 5

Washington State Grange v. Washington State

Republican Party, 128 S. Ct. 1184 (2008) ...... 3

West Virginic State Bd. of Educ. v. Barnette,

RPO TE GOO IGEM) Cg ow oc ccc ee cence 15

Western Pennsylvania Socialist Workers

1982 Campaign v. Connecticut General

Life Ins. Co., 515 A.3d 1331 (Pa. 1986) . 10-11, 23

Woodland v. Michigan Citizens Lobby,

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

Wooley v. Maynard, 430 U.S. 705 (1977) ... 4, 13, 22

Rules of Court

EE Le Se Tre l

I I a 5 gn ule bbw ew aoa re l

Miscellaneous

Bell, Joe, Response to Misleading Union Protest at

Meadowbrook Mall (July 21, 2008), available at

http://www.cafarocompany.com/Press/pdf/

p65.pdf (visited Sept. 14, 2009) ............. 19

Benson, Dan & Maller, Peter, 7arget

Bans Salvation Army Kettlers,

Milwaukee Journal Sentinel,

Oct. 18, 2004 (2004 WLNR 17251123) ......... 9

IV OUILEA ASEM Aha AL EC RAR Bhi aie a ta

vii

TABLE OF AUTHORITIES—Continued

Page

Center for Science in the Public Interest,

Nutrition Action Health Letter, available

at http://cspinet.org/nah/index.htm

(yapetee Heme. 15, BOOED occ cc ccc cece ees 19

Cohen, Rick, Target v. Salvation Army? It’s

About More Than Just Bell Ringers, Non-Profit

Times, Feb. 1, 2005 (2005 WLNR 26459515)....9

Eagle, Steven, Regulatory Takings

se eee ae oy vie a a4 bk ew 5, 8

Ely, James W., Jr., The Guardian of Every

Other Right: A Constitutional History

of Property Rights (2d ed. 1998) .............. 2

Fee, John E., Comment: Unearthing the

Denominator in Regulatory Takings Claims,

61 U. Cai. L. Rev. 16365 (1964) ..... cc cece 5

Kanner, Gideon, Hunting the Snark, Not

the Quark, 30 Urb. Law. 307 (1998) ........... 8

La Fetra, Deborah J., Kick It Up a Notch: First

Amendment Pretection for Commercial Speech,

54 Case Western Res. L. Rev. 1205 (2004) ..... 1

La Fetra, Deborah J., Recent Developments

in Mandatory Student Fee Cases:

SO ae. Bs Oe CP oak oc ke kes eee wee 2

McKee, Mike, Shopping for Trouble:

Stores Increasingly in Court To Send

Solicitors Packing, San Francisco

peecoraer, Ory 12, F398 www cece cece ees 8-9

Vill

TABLE OF AUTHORITIES—Continued

Page

Min-Young, Lee, et al., Competitive

Analysis Between Regional Malls and

Big-Box Retailers: A Correspondence

Analysis for Segmentation and Positioning,

13 J. of Shopping Ctr. Research 81 (2006) ..... 17

Redish, Martin H. & Wasserman, Howard M..,

What’s Good for General Motors: Corporate

Speech and the Theory of Free Expression,

66 Geo. Wash. L. Rev. 235 (1998)............ 12

Restatement (Second) of Torts § 162 (2009) ....... 7

Richards, Robert D. & Calvert, Clay,

Counterspeech 2000: A New Look at

the Old Remedy for “Bad” Speech,

2000 B.Y.U. L. Rev. 553, available at

http://www.restaurant.org/pressroom/rrlist.cfm

ao ge a 20

Schoepflin, Frederick W., Comment, Speech

Activists in Shopping Centers: Must Property

Rights Give Way to Free Expression ?,

64 Wash. L. Rev. 183 (1969) ............... 18

Sisk, Gregory C., Returning to the Prune Yard:

The Unconstitutionality of State-Sanctioned

Trespass in the Name of Speech,

32 Harv. J. L. & Pub. Pol’y 389 (2009) ..... 15-16

Sisk, Gregory C., Uprooting the Pruneyard,

38 Rutgers L.J. 1145 (2007) .

1X

TABLE OF AUTHORITIES—-Continued

Page

Taruschio, Anna M., Note, Zhe First

Amendment, the Right Not To Speak and

the Problem of Government Access Statutes,

27 Fordham Urb. L. J. 1001 (2000) .......... 17

7,

l

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2(a), Pacific

Legal Foundation (PLF) respectfully submits this brief

amicus curiae in support of the Petitioners. Written

consent was granted by counsel for all parties and

lodged with the Clerk of this Court.’

PLF is the largest and most experienced nonprofit

legal foundation of its kind. PLF litigates at all levels

of state and federal courts in defense of private

property rights, and participated as amicus curiae in

PruneYard v. Robins both in this Court (Pruneyard

Shopping Center v. Robins, 447 U.S. 74 (1980)) and in

the California Supreme Court (Robins v. PruneYard

Shopping Center, 23 Cal. 3d 899 (1979)), as well as

many subsequent cases seeking to apply Prune Yard.

See e.g., Venetian Casino Resort, L.L.C. v. Local Joint

Executive Board of Las Vegas, 535 U.S. 905 (2002);

Golden Gateway Center v. Golden Gateway Tenants

Association, 26 Cal. 4th 1013 (2001); Cross v. Texas,

2004 WL 1535606 (Tex. App. Ct.-El Paso). PLF

attorneys also have published on the subject of First

Amendment rights. See, e.g., Deborah J. La Fetra,

Kick It Up a Notch: First Amendment Protection for

Commercial Speech, 54 Case Western Res. L. Rev.

' Pursuant to this Court’s Rule 37.2(a), all parties have consented

to the filing of this brief. Counsel of record for all parties received

notice at least 10 days prior to the due date of the Amicus Curiae’s

intention to file this brief. Letters evidencing such consent have

been filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Cunae affirms that no counse!

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission

2

1205 (2004), and Deborah J. La Fetra, Recent

Developments in Mandatory Student Fee Cases: 10 J.

L. & Pol. 579 (1994).

SUMMARY OF REASONS

FOR GRANTING THE PETITION

Certiorari is warranted here to revisit and to

overrule this Court’s decision in Prune Yard Shopping

Center v. Robins, 447 U.S. 74 (1980). That case was

wrongly decided on both First and Fifth Amendment

grounds. Subsequent decisions by this Court have

undermined its rationale and have striven

unconvincingly to distinguish or limit Prune Yard. The

decision has been criticized by several state courts and

by legal commentators. This Court has also

recharacterized its First Amendment analysis and

distinguished PruneYard repeatedly in subsequent

decisions. PruneYard meets the criteria for

determining when a decision should be overruled. This

is the appropriate case for revisiting and setting

straight this important area of law.

ARGUMENT

I

THE COURT SHOULD GRANT

CERTIORARI TO REVISIT, AND

OVERRULE, PRUNEYARD v. ROBINS

PruneYard is a prime example of the inherent

relationship between private property rights and other

kinds of rights, and an apt illustration of the framers’

belief that private property rights are “the guardian of

every other right.” James W. Ely, Jr., The Guardian of

Every Other Right: A Constitutional History of

Property Rights 26 (2d ed. 1998) (quoting Arthur Lee).

3

Private property consists of a realm of autonomy

that extends to physical objects or places, and includes

an owner’s right to bar others from entering the owned

property. Kaiser Aetna v. United States, 444 U.S. 164,

176 (1979). This ability to exclude is essential to the

freedoms of speech and association because freedom of

expression and the right to exercise the prerogatives of

ownership are fundamentally identical: they represent

realms of individual free choice which other

individuals, and the government, must respect.

Washington State Grange v. Washington State

Republican Party, 128 S. Ct. 1184, 1188 (2008); Boy

Scouts of America v. Dale, 530 U.S. 640, 655 (2000).

This Court’s precedent has recognized the

connection between ownership and expression rights.

Thus, states may not force individuals to contribute

money to the propagation of opinions with which they

disagree, whether those opinions be political, religious,

or even commercial. See, e.g., United States v. United

Foods, Inc., 533 U.S. 405, 410 (2001); Keller v. State

Bar of California, 496 U.S. 1, 9-10 (1990); Chicago

Teachers Union, Local No. 1, AFT, AFL-CIO ov.

Hudson, 475 U.S. 292, 305 (1986); Abood v. Detroit Bd.

of Educ., 431 U.S. 209, 235 (1977). Indeed, in Lloyd

Corp., Ltd. v. Tanner, 407 U.S. 551, 569 (1972), and

Hudgens v. N.L.R.B., 424 U.S. 507, 517-21 (1976), this

Court explicitly held that the First Amendment does

not entitle individuals to express themselves at

privately owned shopping malls without the owners’

consent. Such cases are consistent with the “essential

principle” that “[iJndividual freedom,” including

freedom of expression, “finds tangible expression in

property rights.” United States v. James Daniel Good

Real Property, 510 U.S. 43, 61 (1993).

4

Nevertheless, Prune Yard allowed California state

law to force mall owners to allow speech on their

property, depriving these owners of their property

right to exclude. See 447 U.S. at 82. It also deprived

the owners of their First Amendment right not to

subsidize the propagation of opinions which they do not

wish to express. Cf. Wooley v. Maynard, 430 U.S. 705,

713 (1977) (‘[T]he State may [not] constitutionally

require an individual to participate in_ the

dissemination of an ideological message by displaying

it on his private property.”). This case is the proper

vehicle for reinforcing the fundamental connection

between private property and freedom of expression by

revisiting the Prune Yard case and overruling it.

A. PruneYard’s Takings Clause

Analysis Was Incoherent

and Has Since Been Abrogated

The basic flaw in Prune Yara’s takings analysis lay

in the confusing overlap of the principle of

“investment-backed expectations” with more

fundamental, categorical principles that define the

foundations of property rights. The Prune Yard Court

acknowledged that “there ha[d] literally been a

‘taking’” of the mall owners’ right to exclude. 447 U.S.

at 82. This should have ended the takings analysis.

But the Court proceeded to apply the vague multi-

factor test employed when property is subjected to

regulations diminishing its value. See id. at 82-83.

The errors 1n this approach were manifold.

First, a law requiring a property owner to submit

to a trespass 1s a compensable taking regardless of the

time period involved. This is because, unlike some

regulatory diminutions in value, a trespass is a

discrete incident which can be readily separated intoa

5)

single, compensable “stick” for purposes of

compensation.

When regulations eliminate part, but not all, ofa

property’s use, courts have struggled with the problem

of determining whether to treat that property as

composed of segments, each of which is separately

compensable, or whether to treat it as a unified whole,

the total value of which has merely been diminished.

See, e.g., Vulcan Materials Co. v. City of Tehuacana,

369 F.3d 882, 889 n.5 (5th Cir. 2004). But a trespass

is by nature a particularized, all-or-nothing intrusion,

readily divisible from other incidents of or burdens on

ownership. For this reason, property owners can sell

the right to enter property at a particular time and

place—as when an amusement park sells admission

tickets. Each trespass permanently and _ totally

deprives the owner of a particularized property right.

Trespasses are therefore susceptible of per se

treatment rather than the more ad hoc balancing

approach used in regulatory takings cases. See Steven

Eagle, Regulatory Takings, 823-24 (8d ed. 2005)

(compensation should be awarded for the appropriation

of any property interest for which there is a “ready

market”); John E. Fee, Comment: Unearthing the

Denominator in Regulatory Takings Claims, 61 U. Chi.

L. Rev. 1535, 1557 (1994) (compensation should be

awarded for the taking of “any identifiable segment of

[property]... if prior to regulation it could have been

put to at least one economically viable use,

independent of the surrounding [property] segments.’)

In Brown v. Legal Found. of Washington, 538 U.S.

216 (2003), this Court found that a categorical analysis

was appropriate for determining whether the

confiscation of interest on legal trust accounts was a

6

taking under the Fifth Amendment. Such

appropriations were “more akin to the occupation of a

small amount of rooftop space in Loretto,” id. at 217-18,

in part because they are takings of discrete and readily

quantifiable property interests, as opposed to the

situation where a law imposes a broad diminution in

the value of a whole bundle of rights. Likewise, a

deprivation of an owner's right to exclude, even though

brief relative to the life span of the property, is

nevertheless a compensable taking of a particular

right.

Second, the ad hoc, fact-intensive analysis of Penn

Central Transp. Co. v. New York, 438 U.S. 104 (1978),

should not apply to trespasses. That approach is

justified on the grounds that restrictions on property

rights are often complicated by various economic

factors: whether a regulation (rather than other

dynamic economic factors) actually diminishes the

property’s value, whether the property owner actually

expected to use the property in the relevant respect,

whether the owner actually possessed the right to use

the property that way (or whether such uses were

already barred by “background principles” of state

law, Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1029 (1992)), are factors that require a

complicated, fact-intensive approach. Buta trespass is

a clearly recognizable, categorical matter. By treating

forced trespasses only as a diminution of value,

Prune Yard ran counter to the overwhelming history of

the common law, which regarded trespasses as a

unique category of property infringement. The

common law treats trespasses as a special kind of

harm, to be remedied by both damages and injunction,

and without requiring the plaintiff to prove the value

7

of his injury. See Restatement (Second) of Torts § 162

(2009).

Although Loretto held that forced trespasses are

per se takings, that case distinguished Prune Yard on

the grounds that the mall owners were not required to

submit to a permanent trespass; purportedly

categorically distinct from temporary ones. See

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 436 n.12 (1982). But the Court

subsequently acknowledged that temporary takings of

discrete property rights are “not different in kind from

permanent takings, for which the Constitution clearly

requires compensation.” First English Evangelical

Lutheran Church of Glendale v. Los Angeles County,

482 U.S. 304, 318 (1987). Moreover, because

trespasses are deprivations of discrete property rights,

they are not “normal delays” diminishing a whole

property’s general market value, like laws requiring

building permits, zoning variances, or _ rules

“prohibiting access to crime scenes, businesses that

violate health codes, [or] fire-damaged buildings.”

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regi

Planning Agency, 535 U.S. 302, 335 (2002). Rather,

they are total confiscations of particular property

rights.

Third, PruneYard’s application of the ad hoc

balancing approach led to some bizarre conclusions.

The Court, for example, concluded that the mall

owners’ right to exclude was not “essential to the use

or economic value of their property.” 447 U.S. at 84.

Yet the right to exclude is part of the definition of

property rights; it is not simply an item to be weighed

in valuing that property. In Loretto, the trespass had

a minute impact on the cconomic value of the property,

8

but the Court did not weigh that against other factors.

And in Kaiser Aetna, the property owners made no

showing “that opening the marina to members of the

public would unreasonably impair its value or use; at

least the Court made no mention of any such showing.”

Gideon Kanner, Hunting the Snark, Not the Quark,

30 Urb. Law. 307, 321 (1998).

Moreover, the right to exclude is essential to the

economic value of shopping centers that depend

heavily on their ability to control access to their land.

A major factor in attracting customers is the ambience

created by the management’s choices of including and

excluding particular uses, thus fostering feelings of

comfort, security, and enjoyment for consumers.

“(M]jany individuals patronizing these facilities seek an

oasis in their hectic lives and wish to shop or spend

their family time in private facilities away from the

public spaces that are for some liberating but for

others threatening.” Eagle, supra, at 515.

Shopping mall owners regularly and strongly

assert their property rights against the Prune Yard

rationale, because it obstructs their ability to provide

the type of atmosphere necessary to the successful

operation of a shopping mall. See, e.g., Woodland uv.

Michigan Citizens Lobby, 378 N.W.2d 337, 357 n.47

(Mich. 1985) (“The malls argue . . . that mandated

political access would impose unreasonable harm on

shopping centers.”). Indeed, with petition circulation

becoming an increasingly economic enterprise, and

paid petition circulators aggressively targeting

shoppers for signatures, owners have been forced to

undertake greater efforts to maintain control over their

properties. See Mike McKee, Shopping for Trouble:

Stores Increasingly in Court To Send _ Solicitors

9

Packing, San Francisco Recorder, July 12, 1999.

Under PruneYard, these owners suffer not only

unwanted entries onto their property, but also from

frequent lawsuits that test the boundaries of their

right to exclude.

Many shopping centers have taken drastic steps

to bar unwanted intrusions on their property, and yet

doing so is often a complicated and delicate process. In

2004, Target (a common anchor store in shopping

centers) announced it would not allow Salvation Army

“bell ringers” on its property during the Christmas

shopping season, because the company determined

that it could not legally allow the Salvation Army while

barring other solicitors. See Dan Benson and Peter

Malier, Target Bans Salvation Army Kettlers,

Milwaukee Journal Sentinel, Oct. 18, 2004 (2004

WLNR 17251123). The company’s spokeswoman

explained, “if we continue to allow the Salvation Army

to solicit, then it opens the door to other groups that

wish to solicit our guests.” Jd. The decision was highly

unpopular with consumers and led to protests against

Target; its competitor, Wal-Mart, took the opportunity

to promote its willingness to allow Salvation Army

solicitors—but only for two weeks per year and for no

more than three consecutive days. Rick Cohen,

Target v. Salvation Army? It’s About More Than Just

Bell Ringers, Non-Profit Times, Feb. 1, 2005 (2005

WLNR 26459515). These companies would prefer to

allow Salvation Army collectors on their property while

barring other solicitors who offend customers or oppose

the businesses themselves, but current law does not

allow them to exercise their property rights in that

fashion.

10

Reducing the ability of shopping mall owners to

exclude unwanted speakers from their land can have

dangerous consequences. In Cologne v. Westfarms

Assocs., 469 A.2d 1201 (Conn. 1984), a shopping center

was enjoined from barring a women’s political advocacy

group from circulating literature on its premises. Id.

at 1204. A month later, the Ku Klux Klan appeared,

demanding access to the mall for political expression.

Id. at 1205. When the owners refused, more Klan

members arrived, and a “heated demonstration”

occurred at the mall, to which “[p]olice from several

area towns and the state police” were summoned “to

bring the situation under control. This demonstration

resulted in the closing of some of the stores in the Mall

for a portion or for the remainder of that day.” Id.

Recognizing that forbidding mall owners from

exercising the right to exclude was leading to “a highly

dangerous situation which the police would be unable

to control,” id., the trial court dissolved the injunction,

and the state supreme court found that the state

constitution did not entitle individuals to speak on the

private property of others. Jd. at 1210.

Fourth, most state courts considering the issue

have rejected the rationale of the California Prune Yard

decision on grounds that also undermine this Court’s

decision. See Golden Gateway Ctr., 26 Cal. 4th 1013,

1021 n.5 (listing state decisions rejecting the

PruneYard rationale); Fashion Valley Mall, LLC uv.

N.L.R.B., 42 Cal. 4th 850, 874 (2007) (Chin, J.,

dissenting) (same). These courts found that forcing

property owners to admit speakers would violate

private property rights, constitute “significant

governmental intrusion into private individuals’ affairs

and relations,” and “deprive individuals of important

rights of freedom.” Western Pennsylvania Socialist

a a

11

Workers 1982 Campaign vu. Connecticut General Life

Ins. Co., 515 A.3d 1331, 1335 (Pa. 1986).

In Citizens for Ethical Gov’, Inc. v. Gwinnett

Place Assocs., L.P., 392 S.E.2d 8, 9 (Ga. 1990), the

Georgia Supreme Court rejected the PruneYard

rationale on the grounds that “under the federal

constitution, the owner of a privately owned and

operated shopping center may prohibit the distribution

of handbills or petitions unrelated to the operations of

the center.” In Eastwood Mall, Inc. v. Slanco, 626

N.E.2d 59, 61-62 (Ohio 1994), the Ohio Supreme Court

also rejected the Prune Yard theory because “[t]he right

to contract, the right to do business and the right to

labor freely and without restraint are all constitutional

rights equally sacred, and the privilege of free speech

cannot be used to the exclusion of other constitutional

rights nor as an excuse for unlawful activities with

another’s business .... The power to exclude has

traditionally been considered one of the most treasured

strands in an owner’s bundle of property rights.”

(citations omitted).

Depriving mall owners of the right to exclude is a

particularly “serious form of invasion of [their]

property interests.” Loretto, 458 U.S. at 435. Itis also

characteristically distinct from the broad decrease in

value that this Court has addressed through

multifactor analyses. PruneYard slighted the

importance of the right at issue, applied an

inappropriate test, and confused the relevant

questions. This case presents a fitting opportunity to

correct an important area of takings law.

12

II

THIS COURT SHOULD

GRANT CERTIORARI TO UPHOLD

THE FIRST AMENDMENT RIGHTS

OF SHOPPING MALL OWNERS

A. First Amendment Rights,

Including the Right Not To

Speak, Apply to Corporate

Speech as Well as Individual Speech

Because corporations are groups of individuals

who pool their rights and resources for common

purposes, corporations are generally said to enjoy

constitutional status as “persons.” But this is only a

convenient shorthand for the fact that owners and

managers have constitutionally protected rights. See

The Railroad Tax Cases, 13 F. 722, 747-48 (C.C.D. Cal.

1882) (“[C]ourts will look through the ideal entity and

name of the corporation to the persons who compose it,

and protect them, though the process be in [the

corporation’s} name.”). Thus, the individuals who

comprise a corporation may exercise their freedom of

speech by expressing themselves together, in the name

of the corporation. Indeed, their doing so is often an

important ingredient in public debate and discussion.

Pac. Gas & Elec. Co. v. Public Utils. Comm’n, 475 U.S.

1, 8 (1986) (plurality opinion) (“Corporations .. .

contribute to the discussion, debate, and the

dissemination of information and ideas that the First

Amendment seeks to foster.”) (citing First Natl Bank

of Boston v. Bellotti, 435 U.S. 765, 783 (1978);

Consolidated Edison Co. v. Pub. Serv. Comm'n of NLY.,

447 U.S. 530, 544 (1980)). See also Martin H. Redish

and Howard M. Wasserman, What's Good for General

Motors: Corporate Speech and the Theory of Free

13

Expression, 66 Geo. Wash. L. Rev. 235, 236 (1998)

(“Who ... has a greater interest in what actions the

government takes with regard to the economy than

corporations, whose very survival may well turn on the

success or failure of those actions?”).

Individual First Amendment rights include the

right not to speak, and not to be forced to endorse

messages with which one disagrees. See, e.g., Wooley,

430 U.S. at 714 (freedom of thought and expression

“includes both the right to speak freely and the right to

refrain from speaking at all”). The First Amendment

protects both a person’s freedom to express her views

and a “concomitant freedom not to speak publicly, one

which serves the same ultimate end as freedom of

speech in its affirmative aspect.” Harper & Row

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,

559 (1985).

Because individuals enjoy this right to refrain from

speaking, the corporations they form also enjoy this

right. For example, a newspaper cannot be required to

respond to candidates’ arguments when it might prefer

to be silent. Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241, 258 (1974). Anda private utility company

cannot be forced to distribute a newsletter published by

a third party. Pac. Gas & Elec. Co., 475 U.S. at 9.

This Court appeared to set these concerns aside

when it decided, in Prune Yard, 447 U.S. at 76-77, 81,

that the California Supreme Court’s expansive reading

of that state’s free expression guarantee was consistent

with the mall owner’s federal constitutional rights.

This Court decided that forcing property owners to

provide a forum for speech with which they might

disagree did not violate the owner’s First Amendment

rights, forthree reasons: First, the shopping center was

14

open to the public, making it unlikely that the opinions

of trespassing speakers would be attributed to the

owners. ld. at 87. Second, the state did not require

that any specific message be displayed and this content-

neutrality ensured that the government would not

discriminate for or against any message. ‘Third, owners

could engage in their own speech to disclaim support of

the petition circulators’ message. Id. at 87-88.

PruneYard is not reconcilable with other First

Amendment cases involving the right not to speak, and

for the most part, the Court has skirted the conflicts

between these cases. In Pacific Gas and Electric Co.,

which struck down a state’s requirement that private

companies distribute the messages of third parties, this

Court distinguished Prune Yard on the grounds that

“the owner [in PruneYard] did not even allege that he

objected to the content of the pamphlets; nor was the

access right content based. PruneYard thus does not

undercut the proposition that forced associations that

burden protected speech are impermissible.” 475 U.S.

at 12. Subsequent cases therefore focused on whether

the property owner objects to the message being

distributed. See also Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, Inc., 515 U.S.

557, 579-80 (1995) (noting that, because the mall owner

in Prune Yard never alleged offense, the distribution of

pamphlets did not threaten the owners’ autonomy).

These cases iUlustrate the tension between two,

often competing, conceptions of the freedom of speech:

one views expressive rights as centered around

individual autonomy, and the other views it as a

component of democratic government. Where concerns

of individual autonomy are paramount, negative speech

rights hold sway; but where the “marketplace of ideas”

15

is the primary interest, courts are inclined to hold that

the solution to unwanted speech is more speech. This

Jourt’s protection of individual autonomy explains the

results in such cases as West Virginia State Bd. of Educ.

v. Barnette, 319 U.S. 624, 639-40 (1943) (invalidating a

state law requiring elementary school students to salute

the American flag, because the “principles [embodied in

the Bill of Rights] grew in soil which also produced a

philosophy that the individual was the center of

society”); Abood, 431 U.S. at 234-35 (allowing agency

shop fee payers to disassociate from union speech with

which they disagreed); Hurley, 515 U.S. at 575

(“[Wjhatever the reason [to disagree with a certain

point of view], it boils down to the choice of a speaker

not to propound a particular point of view, and that

choice is presumed to lie beyond the government’s

power to control.”), and Pac. Gas and Elec. Co., 475 U.S.

at 11 (refusing to allow a state agency to dictate the

contents of a private utility’s billing envelope).

Prune Yard stands as an aberration in the context

of these decisions, because it employed the marketplace

of ideas theory in what was literally a private

marketplace. 447 U.S. at 87-89. The Court has shown

particular consideration to property owners whose

property would be converted to use by other speakers

when the property owner can be expected to oppose the

message that the intruders seek to convey. Pac. Gas

and Elec. Co., 475 U.S. at 15-16 (quoting Prune Yard,

447 U.S. at 100) (“his pressure to respond ‘is

particularly apparent when the owner has taken a

position opposed to the view being expressed on his

property. ”). After all, the right to refrain from

speaking rings “hollow if a landowner must make his

property a platform for expression he finds offensive.”

Gregory C. Sisk, Returning to the PruneYard: The

16

Unconstitutionality of State-Sanctioned Trespass in the

Name of Speech, 32 Harv. J. L. & Pub. Pol’y 389, 397

(2009).

By asserting in this case that the union may

protest on Macerich’s privately owned shopping center

properties, the decision below conflicts with one of this

Court’s most fundamental doctrines—that siate action

is required in order for constitutional protections to be

triggered. “(T]he guarantees of free speech... guard

only against encroachment by the government and

‘erec[t] no shield against merely private conduct.’ ”

Hurley, 515 U.S. at 566 (citation omitted). The Consti-

tution provides “a guarantee only against abridgment

lof the right of free speech] by government, federal or

state.” Hudgens v. National Labor Relations Board,

424 U.S. 507, 513 (1976) (emphasis added). As Justice

Powell presciently observed in Prune Yard, “state action

that transforms privately owned property into a forura

for the expression of the public’s views could raise

serious First Amendment questions.” 447 U.S. at 97

(Powell, J., concurring). Those questions are explicitly

presented in this case and warrant resolution by this

Court.

B. A Government Mandate

That Private Property Owners

Endure Offensive, Provocative

Speech on Their Premises

Violates the First Amendment

Government compulsion of property owners to

permit speech on their property creates a “pressure to

respond.” Pac. Gas and Elec. Co., 475 U.S. at 15-16.

This pressure occurs regardless of whether or not the

speaker agrees with the speech and occurs at the time

the government compels the owner to host the

17

unwarranted speech. See Anna M. 'Taruschio, Note, The

First Amendment, the Right Not To Speak and the

Problem of Government Access Statutes, 27 Fordham

Urb. L.J. 1001, 1039 (2000). Thus, while this Court

sought to explain PruneYard in subsequent cases by

reference to the fact that the mall owner in that case

raised no objection to the content of the speech, this

should have had no bearing on the First Amendment

analysis. Rather, the analysis should have turned on

the autonomy rights of the property owners.

In cases like PruneYard, that do not invoke the

marketplace of ideas rationale, the Court should look no

further than the right of the affected individual to speak

or to remain silent. Particularly because this Court

decides only very few of the cases that raise this issue,

the constitutional rule announced should be one that

can apply in the most common fact situation—where

the owner does object to the speech he is commanded to

host.

Shopping centers have a compelling need to protect

their premises from speech that seeks to undermine

their purpose for existence. Shopping centers must

compete with big-box stores, warehouse club stores and

e-retailing. Lee, Min-Young, et al., Competitive

Analysis Between Regional Malls and Big-box Retailers:

A Correspondence Analysis for Segmentation and Posi-

tioning, 13 J. of Shopping Ctr. Research 81, 81-82

(2006). Requiring them to host speech activity imposes

considerable costs on them, even beyond the risk that

specifically anti-mall speech will succeed in encouraging

boycotts. Shopping malls will be required “to assume

the burdens of security for political protests, to allocate

limited space to competing special interest groups, [and]

to suffer potential liability if patrons are injured by

18

disruptive activists.” Gregory C. Sisk, Uprooting the

Pruneyard, 38 Rutgers L.J. 1145, 1191 (2007). Most of

all, a shopping mall typically has reason to engage in

only one type of speech: that which will encourage

people to spend their money on the premises. Shopping

mali managers encourage customers by advertising and

promoting the mall’s mix of shops and other services

and entertainment. Z/d. at 94-95. Mall management

must be silent on virtually every other topic to avoid

alienating some portion of the customer base.

“Compared with the Court’s liberal protection of

newspapers, which exist to engage in expressive

activity, it is unreasonable to burden shopping centers

with an obligation to provide platforms for the

dissemination of views with which the owners may

disagree, when expressive activity represents no part of

shopping centers’ business functions.” Frederick W.

Schoepflin, Comment, Speech Activists in Shopping

Centers: Must Property Rights Give Way to Free

Expression?, 64 Wash. L. Rev. 133, 144 (1989). This is

true even when some owners may be indifferent to

expressive activity unless it impairs the commercial

viability of their shopping centers. Even when some

owners do throw open their doors to speakers, the

government cannot burden those who are more

circumspect. Analogously, while some newspapers

freely accept and print opposing views, the Court does

not mandate an “equal time” policy for publications.

See Tornillo, 418 U.S. 241.

Mall owners endure a very real pressure to

respond to anti-mall speech on the premises. An

effective corporate response must be made almost

immediately to avert or minimize harm or simply to

avoid being defined by ones opponents. When

19

unionized carpenters protested at Meadowbrook Mallin

Bridgeport, West Virginia, last year, distributing hand-

biils complaining about mall hiring practices, the mall

responded in a press release that the “information

contained in these handbills is scurrilous, inflammatory

and flat-out wrong.” The mall justified the actions of its

general contractor and detailed the lengths to which the

mall and the contractor went to appease the unions

prior to the protesi. Joe Bell, Response to Misleading

Union Protest at Meadowbrook Mall (July 21, 2008).?

Companies—and even entire industries—often find

it necessary to respond rapidly to attacks on their

business practices. For example, the past few years

have seen self-proclaimed health advocates excoriate

certain restaurant chains for “supersizing” meal

portions and thus “causing” obesity in their patrons.

See, e.g., Center for Science in the Public Interest,

Nutrition Action Health Letter (containing a regular

column attacking certain foods, such as Baskin-Robbins

sundaes, as “food porn”);*? Pelman ex rel. Pelman uv.

McDonald’s Corp., 452 F. Supp. 2d 329 (S.D.N.Y. 2006)

(blaming McDonald’s for childhood obesity). In

response to this growing trend, the National Restaurant

Association created a “Rapid Response Program”

specifically designed to “rebut denigrating and negative

portrayals of the restaurant industry wherever they

occur in the media, as well as to commend portrayals

* Available at http://www.cafarocompany.com/Press/pdf/p65.pdf

(visited Sept. 14, 2009).

> Available at http://espinet.org/nah/index.htm (visited Sept. 15,

2009).

20

that accurately and positively describe the industry.”

This type of response is growing more common, as

businesses of all types seek to counter bad publicity

with positive information. Robert D. Richards and Clay

Calvert, Counterspeech 2000: A New Look at the Old

Remedy for “Bad” Speec 1, 2000 B.Y.U. L. Rev. 553, 568.

Such exchanges are normal and even laudable in the

“uninhibited, robust ... wide-open . . . vehement,

caustic, and sometimes unpleasantly sharp” realm of

free public debate. New York Times Co. v. Sullivan, 376

U.S. 254, 270 (1964). |

Yet in California, where the malls in this case are

located, businesses often may be unable to respond even

if they want to. A business’ ability to engage in counter-

speech in California is particularly chilled given the

California Supreme Court’s decision in Kasky v. Nike,

Inc., 27 Cal. 4th 939 (2002), cert. dismissed as

improvidently granted, 539 U.S. 654 (2003). In that

case, a national corporation sought to respond to public

attacks on its business practices by publishing reports

disputing the factual assertions on which those attacks

were based. Despite the fact that such give-and-take is

precisely what the First Amendment was designed to

protect, activists sued the company under California’s

“unfair competition law,” arguing that the speech was

an unfair business practice. The company’s

defense—that its speech was. protected First

Amendment expression—was rejected by the California

Supreme Court. Although this Court’s grant of certio-

rari was dismissed for procedural reasons, Justice

Breyer summed up the impact of the California

Supreme Court’s decision accurately: “The upshot is

* Available at http://www.restaurant.org/pressroom/rrlist.cfm

(visited Sept. 14, 2009).

21

that commercial speakers doing business in California

may hesitate to issue significant communications

relevant to public debate because they fear potential

lawsuits and legal liability.” 539 U.S. at 682 (Breyer, J.,

dissenting).

Shopping mall owners must not be made to serve

up their private property to host the speech activities of

others, particularly when those others have no purpose

other than to cause economic harm to the mall itself.

Mall owners are under tremendous pressure to respond

to these attacks, contrary to their preference of

remaining silent. This Court should grant certiorari to

uphold the First Amendment rights of private shopping

mall owners to forbid third-party speech on their

property.

Ill

THE CRITERIA FOR OVERRULING

PRUNEYARD HAVE BEEN MET

While stare decisis is an important legal principle

that protects citizens’ reliance interests, those interests

cannot justify keeping a wrongly decided case on the

books. Lawrence v. Texas, 539 U.S. 558, 577 (2003).

PruneYard was incorrectly decided and should not

remain binding precedent.

Stare decisis counsels against overruling a prior

decision, but it consists of “a series of prudential and

pragmatic considerations” to promote the rule of law

and “gauge the respective ccsts of reaffirming and

overruling a prior case.” Planned Parenthood of Se.

Pennsylvania v. Casey, 505 U.S. 833, 854-55 (1992).

Here, those prudential concerns are outweighed by the

importance of straightening the precedent of property

and free speech law. The PruneYard approach has

22

required repeated refinements and distinctions. In the

realm of takings, this Court distinguished the case in

Loretto, 458 U.S. at 435 n.12, holding that while the

relatively tiny physical invasion in that case was a per

se taking, the far more significant invasion in

Prune Yard was not, due to the fact that the latter was

“temporary. Yet in First English, this Court observed

that temporary invasions of property rights are

nevertheless compensable takings. 482 U.S. at 318.

First Amendment decisions have also distinguished

PruneYard. In Hurley, 515 U.S. 557, the Court found

that the operators of a private parade could not be

forced to allow activists to march in the parade, and

distinguished PruneYard on the grounds that the

parade’s operators were likely to be seen as endorsing

the trespassers’ message, while the mall cwners would

not have been. See id. at 580. Yet this “attribution”

distinction did not operate at all in Wooley, 430 U.S.

705, where there was no surgestion that anyone would

attribute the state’s message of “live free or die” to the

plaintiff.

In Pacific Gas and Electric Co., this Court

employed a different distinction, finding that the utility

company owners disagreed with the opinions expressed

in the pamphlets they were forced to distribute, while

the owners of the PruneYard shopping center had not

disagreed with the message expressed by the

trespassers. But disagreement was not found to be

essential in Tornillo, 418 U.S. at 258, where the First

Amendment barred the government from requiring

newspapers to provide space for others’ expression, even

though there was no suggestion that readers would

assume the newspaper agreed with the message.

23

The unworkability of Prune Yard is also indicated

by the fact that other states have avoided its

impracticable results by holding that their state

constitutions do not require shopping centers to admit

speakers and solicitors. See, e.g., Cologne, 469 A.2d

1201; Western Pennsylvania Socialist Workers 1982

Campaign, 515 A.3d 13831; Citizens for Ethical

Government, Inc., 392 S.E.2d 8; Slanco, 626 N.E.2d 59.

These decisions have been based on state courts’

recognition that the PruneYard approach violates

property owners’ interconnected rights of exclusion and

expression. Thus the PruneYard rule has not led to the

kind of reliance concerns that should be avoided by

maintaining that rule—on the contrary, even California

courts have narrowed the case’s applicability. See

Golden Gateway, 26 Cal. 4th 1013; Albertson’s, Inc. v.

Young, 107 Cal. App. 4th 106, 109-10 (20083).

The Prune Yard decision—allowing the government

to force property owners to allow persons on their land

to express political opinions when the owners would

prefer not to speak and not to subsidize that speech—is

inconsistent with basic principles of free expression and

private property. This case is an appropriate

opportunity to reconsider the decision and overrule it.

24

+

”

CONCLUSION

The petition for a writ of certiorari should be

granted.

DATED: September, 2009.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

HAROLD E. JOHNSON

TIMOTHY SANDEFUR

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae Pacific Legal Foundation