| Pruneyard Shopping Center v. Robins
(No. 79-289)
23 Cal.3d 899, 592 P.2d 341, affirmed. |
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| Syllabus
| Opinion
[ Rehnquist ] | Concurrence
[ Marshall ] | Concurrence
[ White ] | Concurrence
[ Powell ] |
| HTML version
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Pruneyard Shopping Center v. Robins
APPEAL FROM THE SUPREME COURT OF CALIFORNIA
MR. JUSTICE POWELL, with whom MR JUSTICE WHITE joins, concurring in part and in the judgment.
Although I join the judgment, I do not agree with all of the reasoning in Part V of the Court's opinion. I join Parts I-IV on the understanding that our decision is limited to the type of shopping center involved in this case. Significantly different questions would be presented if a State authorized strangers to picket or distribute leaflets in privately owned, freestanding stores and commercial premises. Nor does our decision today apply to all "shopping centers." This generic term may include retail establishments that vary widely in size, location, and other relevant characteristics. Even large establishments may be able to show that the number or type of persons wishing to speak on their premises would create a substantial annoyance to customers that could be eliminated only by elaborate, expensive, and possibly unenforceable time, place, and manner restrictions. As the Court observes, state power to regulate private property is limited to the adoption of reasonable restrictions that "do not amount to a taking without [p97] just compensation or contravene any other federal constitutional provision." Ante at 81.
I
Restrictions on property use, like other state laws, are invalid if they infringe the freedom of expression and belief protected by the First and Fourteenth Amendments. In Part V of today's opinion, the Court rejects appellants' contention that "a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." Ante at 85. I agree that the owner of this shopping center has failed to establish a cognizable First Amendment claim in this case. But some of the language in the Court's opinion is unnecessarily, and perhaps confusingly, broad. In my view, state action that transforms privately owned property into a forum for the expression of the public's views could raise serious First Amendment questions.
The State may not compel a person to affirm a belief he does not hold. See Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Whatever the full sweep of this principle, I do not believe that the result in Wooley v. Maynard, supra, would have hanged had the State of New Hampshire directed its citizens to place the slogan "Live Free or Die" in their shop windows, rather than on their automobiles. In that case, we said that
[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts.
430 U.S. at 714. This principle, on its face, protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is "not limited to [his] personal use. . . ." Ante at 87. A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline "to be [p98] an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Wooley v. Maynard, supra at 715. [n1]
As the Court observes, this case involves only a state-created right of limited access to a specialized type of property. Ante at 87, 87-88. But even when no particular message is mandated by the State, First Amendment interests are affected by state action that forces a property owner to admit third-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself. For example, a law requiring that a newspaper permit others to use its columns imposes an unacceptable burden upon the newspaper's First Amendment right to select material for publication. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117 (1973) (plurality opinion). Such a right of access burdens the newspaper's "fundamental right to decide what to print or omit." Wooley v. Maynard, supra at 714; see Miami Herald Publishing Co. v. Tornillo, supra, at 257. As such, it is tantamount to compelled affirmation, and, thus, presumptively unconstitutional. [n2] [p99]
The selection of material for publication is not generally a concern of shopping centers. But similar speech interests are affected when listeners are likely to identify opinions expressed by members of the public on commercial property as the views of the owner. If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center, customers might well conclude that the messages reflect the view of the proprietor. The same would be true if the public were allowed to solicit or distribute pamphlets in the entrance area of a store or in the lobby of a private building. The property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else's belief. Should he choose the second, he has been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, see ante at 87, cannot restore his "right to refrain from speaking at all." Wooley v. Maynard, supra at 714.
A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. Numerous examples come to mind. A minority-owned business confronted with leaflet distributors from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak. The strong emotions evoked by speech [p100] in such situations may virtually compel the proprietor to respond. The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property. But an owner who strongly objects to some of the causes to which the state-imposed right of access would extend may oppose ideological activities "of any sort" that are not related to the purposes for which he has invited the public onto his property. See Abood v. Detroit Board of Education, 431 U.S. 209, 213, 241 (1977). To require the owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his "freedom to maintain his own beliefs without public disclosure." Ibid. [n3] Thus, the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner. [n4]
II
One easily can identify other circumstances in which a right of access to commercial property would burden the owner's First and Fourteenth Amendment right to refrain from [p101] speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would support a holding in their favor under either of the legal theories outlined above.
On the record before us, I cannot say that customers of this vast center would be likely to assume that appellees' limited speech activity expressed the views of the PruneYard or of its owner. The shopping center occupies several city blocks. It contains more than 65 shops, 10 restaurants, and a theater. Interspersed among these establishments are common walkways and plazas designed to attract the public. See ante at 77, 83. Appellees are high school students who set up their card table in one corner of a central courtyard known as the "Grand Plaza." App. to Juris.Statement B-2. They showed passersby several petitions and solicited signatures. Persons solicited could not reasonably have believed that the petitions embodied the views of the shopping center merely because it owned the ground on which they stood.
Appellants have not alleged that they object to the ideas contained in the appellees' petitions. Nor do they assert that some groups who reasonably might be expected to speak at the PruneYard will express views that are so objectionable as to require a response even when listeners will not mistake their source. The record contains no evidence concerning the numbers or types of interest groups that may seek access to this shopping center, and no testimony showing that the appellants strongly disagree with any of them.
Because appellants have not shown that the limited right of access held to be afforded by the California Constitution burdened their First and Fourteenth Amendment rights in the circumstances presented, I join the judgment of the Court. I do not interpret our decision today as a blanket approval for state efforts to transform privately owned commercial property into public forums. Any such state action would raise substantial federal constitutional questions not present in this case.
1. Cf. Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972) ("property [does not] lose its private character merely because the public is generally invited to use it for designated purposes").
2. Even if a person's own speech is not affected by a right of access to his property, a requirement that he lend support to the expression of a third party's views may burden impermissibly the freedoms of association and belief protected by the First and Fourteenth Amendments. In Abood v. Detroit Board of Education, 431 U.S. 209, 235 (1977), we held that a State may not require a person "to contribute to the support of an ideological cause he may oppose. . . ." To require a landowner to supply a forum for causes he finds objectionable also might be an unacceptable "compelled subsidization" in some circumstances. Id. at 237; cf. Central Hardware Co. v. NLRB, 407 U.S. 539, 543-545 (1972) ("property rights" may permit exclusion of union organizers); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956) (same). See generally Eastex, Inc. v. NLRB, 437 U.S. 556, 571-576 (1978); Hudgens v. NLRB, 424 U.S. 507, 521-522 (1976). The appellants do not argue, however, that Abood supports the claimed right to exclude speakers from their property. Nor have they alleged that they disagree with the messages at issue in this case. See infra at 101.
3. The problem is compounded where, as in shopping centers or in the lobby areas of hotels and office buildings, stores are leased to different proprietors with divergent views.
4. In a proper case, the property owner also may be protected by the principle that "a State has no business telling a man, ‘sitting alone in his own house, what books he may read or what films he may watch." Stanley v. Georgia, 394 U.S. 557, 565 (1969). Observing that a State has no interest in controlling the moral content of a person's thoughts, ibid., the Court in Stanley invalidated a law imposing criminal penalties for the private possession of obscenity. Stanley prevents a State from removing from the home expressive materials that a person may wish to peruse privately. The same principle may extend to state action that forces individual exposure to third-party messages. Thus, a law that required homeowners to permit speakers to congregate on their front lawns would be a massive, and possibly unconstitutional, intrusion into personal privacy and freedom of belief. No such problem arises in this case.
