August 13, 2010

In California, free speech "rights" once again trump property rights

By In California, free speech "rights" once again trump property rights

Author:  Paul Beard

Is a business required by law to allow religious people to come onto its property and proselytize its customers? 
 
If it's a private shopping mall in California, the answer is "yes." 
 
This week, in Snatchko v. Westfield, LLC, the California Court of Appeal issued a published decision holding that a mall's rules prohibiting, among other things, a pastor's ability to proselytize the mall's patrons violated the pastor's free-speech rights under the California Constitution.  And what of Westfield's property rights—specifically, its right to freely decide the kinds of activities that can and cannot take place on its premises?  The short answer is:  It has no such right—and it hasn't, at least in California, for over three decades.
 

Snatchko is just the latest in a long line of cases to elevate free speech "rights" above private private property rights, starting with the state supreme court's 1979 decision in Pruneyard Shopping Center v. Robins.  In Pruneyard, the court dramatically altered the nature and scope of the right to free speech under the California Constitution.  The court held that the right could be claimed, not just against government entities and officials, but private businesses that are regularly held open to the public (in this case, a private shopping center) as well.  The United States Supreme Court affirmed the state supreme court's decision, holding that states could extend free speech "rights" beyond the traditional realm of government regulation to private individuals and entities, without violating those private parties' property rights.
 
While attempts to expand Pruneyard to businesses other than shopping centers luckily have been unsuccessful, Pruneyard unfortunately remains California law, much to the chagrin of at least three sitting justices on the California Supreme Court.  In 2007, in Fashion Valley Mall, LLC, v. National Labor Relations Board, a divided supreme court held that a union's free speech rights in a shopping center include the right to distribute leaflets urging the center's patrons to boycott one of its tenants.  Justices Chin, Baxter, and Corrigan dissented from the decision, writing:
 
"Pruneyard was wrong when decided.  In the nearly three decades that have since elapsed, jurisdictions throughout the nation have overwhelmingly rejected it. We should no longer ignore this tide of history. The time has come for us to forthrightly overrule Pruneyard and rejoin the rest of the nation in this important area of the law. Private property should be treated as private property, not as a public free speech zone."
 
The dissenters are correct.  Properly understood, property rights include the right to control what occurs on your land, and to prohibit speech or activities that are offensive or disagreeable to you and your guests.  In principle, it should be no different for shopping malls, whose stores and common areas remain the private property of the mall owner.  If a pastor wishes to spread his religious beliefs, or a union to urge the boycott of a store, they remain free to do so—from their private properties and from a myriad of publicly owned spaces.
 
As of the writing of this post, it is unknown whether Westfield will petition the supreme court for review of the adverse court of appeal decision.  If it does, it may ask the supreme court to reconsider and overrule Pruneyard.  Interestingly, the court of appeal justice who rendered the Snatchko decision, Justice Tani Cantil-Sakauye, has been nominated to succeed Chief Justice Ronald George when he retires in early January.  Should a petition to overrule Pruneyard be filed and accepted, and Cantil-Sakauye confirmed, she likely would recuse herself.  If that happens, a court that is currently evenly divided on the merits of Pruneyard (with 3 justices in favor and 3 justices against) would decide the matter.

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