PROPERTY A SLIDES

Friday Feb 6: Music Tina Turner, Private Dancer (1984)

PROPERTY A: 2/6 As Valentine ’ s Day Approaches : Too Much Part Two

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PROPERTY A (2/6) I.Review Problem 1J (Redwood) (cont’d) II.Free Speech Rights (Arches) III.Introduction to Eminent Domain Apologies for Problems with Parallel Parking Yesterday Redwoods & Ferns

Right to Exclude: Review Problem 1J Client uses MWs living onsite to pick crops several wks/yr. Large meeting hall next to MW barracks MWs get Sundays off; invite MWs from nearby farms to hall for Religious Service Social Event after Client seeks advice about whether he has to allow Asked to describe legal/factual research necessary to advise Yesterday: Gen’l Legal Framework & Qs re Religious Services

Right to Exclude: Review Problem 1J (Redwood) Legal & Factual Research Relevant to The Social Events 1.Nature of Social Event? 2.Possible Harms Different/Separate from Those Caused By Religious Services? 3.Benefits/Significance to MWs? 4.Other?

Right to Exclude: Review Problem 1J (Redwood) Legal & Factual Research Relevant to Client Having Allowed This Access in the Past Generally raises legal issues re implied contracts or estoppel Unlikely here because MWs hired each year for a few weeks Could check for written agreements by C or predecessor Worst case: Prior O agreed to access b/c MWs helped build hall Could check for legal significance of prior authorization (e.g., court then skeptical that harm is great)

Right to Exclude: Review Problem 1J (Redwood) Legal & Factual Research Relevant to The Neighboring Farms that Employ MWs

Right to Exclude: Review Problem 1J (Redwood) Legal & Factual Research Relevant to the Following Aspects of the Problem: General Info to Help You Understand the Situation

PROPERTY A (2/6) I.Review Problem 1J (Redwood) II.Free Speech Rights (Arches) III.Introduction to Eminent Domain (Yellowstone)

Right to Exclude: Parcels Open to the Public Transition Quote (N3 on P84) “[T]he more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property.” --Uston quoting State v. Schmid.

ARCHES: DQs DELICATE ARCHES

ARCHES Electronic Cold Call: DQ1.28 ARCHES Electronic Cold Call: DQ1.28 Your Response to Me by 2:00 p.m. Tomorrow DQ1.28. Can you formulate a rule or a set of standards for when a business generally open to the public should be prevented from excluding particular individuals or activities? Dahle* Lievano* Sandler* Sued Submit version of what you had prepared for this DQ Needs to be clear (not pretty) Can include bullet points, abbreviations, etc. I’ll write up some comments & make available to all in Info Memo soon

Right to Exclude: Parcels Open to the Public JMB: Overview NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues. Our Coverage 1.Relevant Interests (DQ ) 2.Logic of Opinion (Me) 3.Application in Future Problems a.Permissible Regulation (DQ1. 26) b.Relation to Other Right to Exclude Problems (Me & DQ1.27)

Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Arches) Possible harms to the owners in JMB: 1.Forced Speech 2.Psychic Harm 3.Interference with Business

Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Arches) Possible harms to the owners in JMB: 1.Forced Speech 1 st Amdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with Are shoppers likely to view protestor speech that way?

Right to Exclude: Parcels Open to the Public JMB: DQ1.24 O’s Interests (Arches) Possible harms to the owners in JMB: 1.Forced Speech 1 st Amdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with I’m skeptical that shoppers would view that way Court rejects this claim in portion of opinion not in book

Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Arches) Possible harms to the owners in JMB: 1.Forced Speech (claim rejected by NJSCt) 2.Psychic Harm Feelings of Lack of Control Over Property Made Worse by Speech if Os Disagree NOTE: Genuine, but hard to Quantify Likely to be Very Significant in this Context?

Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Arches) Possible harms to the owners in JMB: 1.Forced Speech (claim rejected by NJSCt) 2.Psychic Harm Would have to convince court that would make significant difference w lots of other people at mall & very broad public invitation No claims, e.g., re privacy. Plus can exclude completely when mall is closed 3.Interference with Business : Specific Concerns? Likely to be Very Significant in this Context?

Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Arches) Specific Business Concerns Include: Customers May Not Like  Go Elsewhere Security/Monitoring Clean-Up Tort Liability/Insurance Interferes w Traffic Patterns/Access to Particular Tenants How significant are these harms likely to be?

Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Arches) Points re Significance of Specific Business Concerns: Customers may not like, BUT if at all malls, they’ll get used to & other malls won’t be better choices Average Daily Traffic = 28,750 People Unlikely to Significantly Impact Security, Clean-Up, etc. Tort Liability  Insurance Premiums (I bet near-zero effect) Interference w Traffic & Access Might Be Problem BUT Probably Ways to Address without Complete Exclusion Not Like Foot Traffic Always Flows Smoothly!! Note Lack of Specificity in Case re Harms to Malls

Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Arches) Business Concerns Articulated in Dissent by Garibaldi, J. (Note 3 incorrect; “her” not “him”) Anyone Know Historical Irony of a Garibaldi Taking This Position?

GARIBALDIS LIBERATOR GIUSEPPE JUSTICE MARIE, DISSENTING

Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Arches) What benefits to society might there be to allowing political activists to hand out leaflets at privately-owned shopping centers?

Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Arches) Interests of Public in Speech at Malls Include: Speakers Get Access to Folks They Might Not Otherwise Reach Few Traditional Public Spaces in Suburbs Maybe Can Target Speech to People with Particular Interests (near specific stores, etc.) How significant are these benefits likely to be?

Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Arches) Interests of Public in Speech at Malls: Speakers Get Access to Folks They Might Not Otherwise Reach Significance is Fact Q: Likely varies greatly with locality J. Garibaldi suggests not very significant. SUBURBS BUT maybe most cost-effective way to reach public in SUBURBS when opinion decided in Why Might 1994 Be Significant for Thinking About These Interests?

Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Arches) Interests of Public in Speech at Malls: Possible Significance of 1994 Just Before Widespread Public Internet Access May Change Calculus of Relevant Interests Maybe Os’ Interests  : Shoppers Irritated by Political Leafletters Shop Online Instead of at Malls Maybe Public Interest  : Internet Means Less Need to Access Malls to Spread Points of View

Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal Cases (Discussed in JMB P88-89): Marsh: Company town: 1 st Amdt applies Logan Valley extended Marsh to shopping centers Tanner & Hudgens overrule Logan Valley & hold shopping centers are private space not addressed by federal 1st Amdt

Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal v. State Constitutions Federal Constitution limits both state & federal govt power State Constitutions Can’t permit what Feds prohibit BUT State can choose to restrict itself more than Feds do E.g., by forbidding its own police from doing some searches and seizures allowed by 4 th Amdt E.g., by protecting speech more than Fedl 1 st Amdt We’ll see again in Chapter 2

Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal v. State Constitutions Federal Constitution limits both state & federal govt power State Constitutions Can’t permit what Feds prohibit BUT State can choose to restrict itself more than Feds do SPEECH PROTECTED BY FED’L 1 ST AMDT SPEECH PROTECTED BY STATE 1 ST AMDT

Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Pruneyard (Cal. 1979) aff’d (US 1980) Calif SCt says its state 1 st Amdt protects speech more than Fedl 1 st Amdt and gives its citizens the right to free speech in Shopping Centers Shopping Center Os appeal claiming that Calif allowing this access interferes with property rights in violation of 5 th and 14 th Amdts of Fedl Constitution:

Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Pruneyard (Cal. 1979) aff’d (US 1980) Calif SCt says its state 1 st Amdt protects speech more than Fedl 1 st Amdt and gives its citizens the right to free speech in Shopping Centers Shopping Center Os appeal claiming that Calif allowing this access interferes with property rights in violation of 5 th and 14 th Amdts of Fedl Constitution: USSCt says no violation of Fedl Constitution Effectively leaves states with choice of whether to provide state protection for speech at shopping centers: Federal 1 st Amdt allows (but doesn’t require) Federal 5 th /14 th Amdts don’t forbid

Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal v. State Constitutions Federal Constitution limits both state & federal govt power State Constitutions Can’t permit what Feds prohibit BUT State can restrict itself more SPEECH PROTECTED BY FED’L 1 ST AMDT BETWEEN FED’L REQUIREMENTS = ZONE OF STATE CHOICE GOVT ACTIONS BANNED BY FED’L 5th AMDT Property Rts

Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background In JMB, NJ follows Calif & says its state 1 st Amdt gives its citizens the right to free speech in Shopping Centers Calif & NJ only states to do this through state 1 st Amdt. Mass & Colo & Wash (limited; see FN1 on P93-94) allow speech access to shopping centers on other theories. Other states do not allow speech access to shopping centers. Other states do not allow speech access to shopping centers.

Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) JMB Follows & Applies Schmid (NJ 1980) Schmid : Free Speech access to Princeton Univ. Schmid : Free Speech access to Princeton Univ. (Private property often open to public) Case described in detail on P89-90 Note appeal dismissed in Schmid by USSCt (see cite on P89) Tried for fedl property rts claim as made unsuccessfully in Pruneyard & could perhaps try re Shack

Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) JMB Follows & Applies Schmid (NJ 1980) Schmid allowed Free Speech access to Princeton Univ. Uses Three-Part Balancing Test (P90); Can Use For … Access Claims re 1 st Amdt Rights (Like JMB) Other Limits on Right to Exclude (Like Brooks) We’ll Look at in More Detail for DQ1.27 Schmid allows O to put some restrictions on access, BUT doesn’t specify what restrictions OK

Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) JMB Follows & Applies Schmid (NJ 1980) Note importance of analogy to town square. Note importance of very broad invitation by malls. Court (P92) explicitly says it is drawing on common law as well as NJ 1 st Amdt Cites/discusses Shack Again suggests can use JMB/Schmid to support other kinds of limits on rt excl besides 1 st Amdt Qs on JMB Reasoning?