|Pruneyard Shopping Center v. Robins
23 Cal.3d 899, 592 P.2d 341, affirmed.
[ Rehnquist ]
[ Marshall ]
[ White ]
[ Powell ]
Pruneyard Shopping Center v. Robins
APPEAL FROM THE SUPREME COURT OF CALIFORNIA
MR. JUSTICE MARSHALL, concurring.
I join the opinion of the Court, but write separately to make a few additional points.
In Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), this Court held that the First and Fourteenth Amendments prevented a state court from relying on its law of trespass to enjoin the peaceful picketing of a business enterprise located within a shopping center. The Court concluded that, because the shopping center "serves as the community business block" and is open to the general public,
the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises.
Id. at 319. The Court rejected the suggestion that such an abrogation of the state law of trespass would intrude on the constitutionally protected property rights of shopping center owners. And it emphasized that the shopping center was open to the public, and that reasonable restrictions on the exercise of communicative activity would be permitted.
[N]o meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue.
Id. at 324.
The Court in Logan Valley emphasized that, if the property rights of shopping center owners were permitted to overcome the First Amendment rights of prospective petitioners, a significant intrusion on communicative activity would result. Because "[t]he large-scale movement of this country's population from the cities to the suburbs has been accompanied [p90] by the advent of the suburban shopping center," a contrary decision would have
substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies.
Ibid. In light of these realities, we concluded that the First and Fourteenth Amendments prohibited the State from using its trespass laws to prevent the exercise of expressive activities on privately owned shopping centers, at least when those activities were related to the operations of the store at which they were directed.
In Lloyd Corp. v. Tanner, 407 U.S. 551"]407 U.S. 551 (1972), the Court confined Logan Valley to its facts, holding that the First and Fourteenth Amendments were not violated when a State prohibited petitioning that was not designed to convey information with respect to the operation of the store that was being picketed. The Court indicated that a contrary result would constitute "an unwarranted infringement of property rights." 407 U.S. at 567. And in 407 U.S. 551 (1972), the Court confined Logan Valley to its facts, holding that the First and Fourteenth Amendments were not violated when a State prohibited petitioning that was not designed to convey information with respect to the operation of the store that was being picketed. The Court indicated that a contrary result would constitute "an unwarranted infringement of property rights." 407 U.S. at 567. And in Hudgens v. NLRB, 424 U.S. 507 (1976), the Court concluded that Lloyd had in fact overruled Logan Valley.
I continue to believe that Logan Valley was rightly decided, and that both Lloyd and Hudgens were incorrect interpretations of the First and Fourteenth Amendments. State action was present in all three cases. In all of them, the shopping center owners had opened their centers to the public at large, effectively replacing the State with respect to such traditional First Amendment forums as streets, sidewalks, and parks. The State had, in turn, made its laws of trespass available to shopping center owners, enabling them to exclude those who wished to engage in expressive activity on their premises. [n1] [p91] Rights of free expression become illusory when a State has operated in such a way as to shut off effective channels of communication. I continue to believe, then, that
the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems . . . from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech.
Hudgens v. NLRB, supra at 542 (dissenting opinion).
In the litigation now before the Court, the Supreme Court of California construed the California Constitution to protect precisely those rights of communication and expression that were at stake in Logan Valley, Lloyd, and Hudgens. The California court concluded that its State "[C]onstitution broadly proclaims speech and petition rights. Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those rights." 23 Cal.3d 899, 910, 592 P.2d 341, 347 (1979). Like the Court in Logan Valley, the California court found that access to shopping centers was crucial to the exercise of rights of free expression. And like the Court in Logan Valley, the California court rejected the suggestion that the Fourteenth Amendment barred the intrusion on the property rights of the shopping center owners. I applaud the court's decision, which is a part of a very healthy trend of affording state constitutional provisions a more expansive interpretation than this Court has given to the Federal Constitution. See Brennan State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977).
Appellants, of course, take a different view. They contend that the decision below amounts to a constitutional "taking" or a deprivation of their property without due process of law. Lloyd, they claim, did not merely overrule Logan [p92] Valley's First Amendment holding; it overruled its due process ruling as well, recognizing a federally protected right on the part of shopping center owners to enforce the preexisting state law of trespass by excluding those who engage in communicative activity on their property. In my view, the issue appellants present is largely a restatement of the question of whether and to what extent a State may abrogate or modify common law rights. Although the cases in this Court do not definitively resolve the question, they demonstrate that appellants' claim has no merit.
Earlier this Term, in Martinez v. California, 444 U.S. 277 (1980), the Court was also confronted with a claim that the abolition of a cause of action previously conferred by state law was an impermissible taking of "property." We responded that, even if a preexisting state law remedy
is a species of "property" protected by the Due Process Clause, . . . it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.
Id. at 281-282. Similarly, in the context of a claim that a guest statute impermissibly abrogated common law rights of tort, the Court observed that the Due Process Clause does not forbid the "creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." Silver v. Silver, 280 U.S. 117, 122 (1929). And in Munn v. Illinois, 94 U.S. 113 (1877), the Court upheld a statute limiting the permissible rate for the warehousing of grain.
A person has no property, no vested interest, in any rule of the common law. . . . Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will . . . of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the [p93] common law as they are developed, and to adapt it to the changes of time and circumstances.
Appellants' claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State, notwithstanding the California Supreme Court's finding that state-created rights of expressive activity would be severely hindered if shopping centers were closed to expressive activities by members of the public. If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U.S. 45 (1905), when common law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result.
On the other hand, I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common law rights by Congress or a state government. The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect. [n2] Quite serious constitutional questions might be raised if a legislature attempted to abolish certain [p94] categories of common law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish "core" common law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy. [n3]
That "core" has not been approached in this case. The California Supreme Court's decision is limited to shopping centers, which are already open to the general public. The owners are permitted to impose reasonable restrictions on expressive activity. There has been no showing of interference with appellants' normal business operations. The California court has not permitted an invasion of any personal sanctuary. Cf. Stanley v. Georgia, 394 U.S. 557 (1969). No rights of privacy are implicated. In these circumstances, [p95] there is no basis for strictly scrutinizing the intrusion authorized by the California Supreme Court.
I join the opinion of the Court.
1. In this respect, the cases resembled Shelley v. Kraemer, 334 U.S. 1"]334 U.S. 1 (1948), and 334 U.S. 1 (1948), and New York Times Co. v. Sullivan, 376 U.S. 254 (1964), in which the common law rules of contract and tort were held to constitute state action for Fourteenth Amendment purposes.
2. This understanding is embodied in cases in the procedural due process area holding that at least some "grievous losses" amount to deprivation of "liberty" or "property" within the meaning of the Due Process Clause, even if those losses are not protected by statutory or common law. See Vitek v. Jones, 445 U.S. 480, 488-489 (1980), and cases cited; Mathews v. Eldridge, 424 U.S. 319, 333 (1976). See also Meachum v. Fano, 427 U.S. 215, 229 (1976) (STEVENS, J., dissenting).
3. For example, in Ingraham v. Wright, 430 U.S. 651 (1977), the Court found a constitutional liberty interest in freedom from corporal punishment, in large part on the ground that that interest was protected at common law. The Court stated that the
Due Process Clause . . . was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
Id. at 672-673 (citation omitted). In Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88 (1978), the Court reserved the question whether, in creating a compensation scheme for victims of nuclear accidents, Congress was constitutionally obliged to "provide a reasonable substitute remedy" for the abrogation of common law rights of tort. Similarly, in New York Central R. Co. v. White, 243 U.S. 188, 201 (1917), the Court expressed uncertainty as to whether
a State might, without violence to the constitutional guaranty of "due process of law," suddenly set aside all common law rules respecting liability as between employer and employee, without providing a reasonably just substitute,
doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead.