Multiple media outlets make errors about upcoming Supreme Court case Cedar Point Nursery v. Hassid

On March 22, PLF will argue at the Supreme Court of the United States what has become the most contentious property rights dispute in the nation, Cedar Point Nursery v Hassid. This case centers around a controversial California regulation that allows union organizers to enter (without permission) private farms for up to 3 hours a day, 120 days a year without being arrested. Proponents of the law claim that it’s necessary for unions to recruit new members, despite the fact there are plenty of other constitutional ways for unions to recruit members while respecting farmers’ property rights.

In the press and in friend-of-the-court briefs, union allies supporting the California law have presented a parade of horribles to create fear or confusion. A common theme is the idea that property rights threaten the well-being of workers, or even society itself.

These interpretations are misguided, and in some cases quite misleading.

To the farmers, the Cedar Point Nursery v Hassid case is basic. What makes private property private is the owner’s right to control who is on their property and on what terms. In legal language, the right to possess property includes the right to exclude unwanted strangers. People who interfere with that right are trespassers and can be removed.

But the government’s access regulation entitles union organizers to access the companies’ private property without the owners’ permission—indeed, to occupy the property and interfere with the business despite the owner’s objections. According to eight judges on the U.S. Court of Appeals for the Ninth Circuit, the regulation “deprives property owners of their constitutional rights.”

The case before the Supreme Court points to the Fifth Amendment, which says that government shall not take private property without payment of just compensation. The companies want the regulation repealed, or fair payment for being forced to let strangers enter private property without permission.

Let’s take a closer look at the various journalistic attempts to paint Cedar Point’s defense of property rights as somehow nefarious, and why these arguments are mistaken:

• Ian Millhiser of Vox falsely claims that a win for the farms “would allow businesses to deny entry to health inspectors and other government officials who ensure that those businesses are being operated safely.” Not so. The Fourth Amendment to the Constitution says that law enforcement officials may conduct reasonable searches of private property, sometimes with a warrant and sometimes without, depending on circumstances. None of that would be disturbed by this case.
• Millhiser goes on to (again) mistakenly claim that “a victory for the Cedar Point plaintiffs could endanger…requirements that buildings in earthquake-prone areas be built to protect occupants from such quakes.” Again, not true. The plaintiffs’ own briefs make a sharp distinction between the California Agricultural Labor Relations Board (ALRB) regulation, which allows unwanted people to physically invade private property, and regulations concerning the way an owner uses property (which includes complying with building codes). Those use regulations are controlled by an entirely different body of Supreme Court precedent that is not involved in this case.
• Nathan Newman of The Nation wrongly argued that the case threatens to roll back civil rights laws that prohibit businesses from discriminating against patrons based on race. But those laws say that when one invites the public into one’s business, one cannot refuse service based on race. That has nothing to do with Cedar Point, which concerns the property rights of landowners whose property is expressly closed to the public. Besides, the Supreme Court has already ruled that those civil rights laws do not violate the Fifth Amendment, and our case does not argue otherwise.
• In another line of attack, David Bacon of Salon mistakenly suggests the case will erode unions’ power to organize workers. Notably, Cedar Point and Fowler Packing workers chose not to join the unions that forced their way onto the property. Nonetheless, if the regulation is struck down, unions will simply be required to negotiate with employers to gain access to workers at times and locations on the property that are mutually acceptable. And if the state wants to continue forcing companies to accommodate unions at unwanted times and places, it can do so by compensating the property owners for taking an easement over the property. All that a win for the companies would do is end a special privilege that the ALRB has given to unions to violate property rights. It is striking that no state other than California has given unions this privilege, and yet unions in other states have found ways to thrive.

Many critics have attempted to make Cedar Point appear as a threat to myriad issues that have nothing to do with the case; they never grapple with the fundamental truth at the center of this case: Secure property rights are a foundation of civil society.

Property rights are explicitly protected in the U.S. Constitution, and both workers and employers gain from America’s system of private property and free enterprise. Defending the principle of private property is what the Cedar Point case is about.