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Thread: Are shopping malls private property or a public forum?

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    Regular Member Thundar's Avatar
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    Interesting article about constitutional free speech rights inside malls in California. Private property rights do not trump all constitutional rights in a public forum.

    I think the ruling is kooky, but I thought this would be a good discussion point for those that think that public places have less private property rights than homes. (i.e; Don't tell me I can't have my gun in your mall. Your personal property rights do not trump my right to bear arms.)

    The link:

    http://www.nbc11.com/news/14920522/d...subid=10111094

    The story:

    SAN FRANCISCO -- [/b]The California Supreme Court ruled by a 4-3 vote Monday that shopping malls can't prohibit protesters from urging a boycott of one of the facility's stores.

    The court, in a decision issued at its San Francisco headquarters, said the state constitutional right of free speech protects such protests.

    Justice Carlos Moreno, the author of the majority opinion, wrote, "Urging customers to boycott a store lies at the core of the right to free speech."

    The court struck down a rule in which the Fashion Valley Mall in San Diego, while allowing most free speech, banned protests that urged or encouraged boycotts of mall stores.

    The rule had been challenged by newspaper union workers who were barred by the mall from passing out leaflets in front of a mall store that advertised in the newspaper. The leaflets asked customers and employees to call the newspaper's chief executive about alleged unfair treatment of the workers.

    In a key ruling in 1979 in a case concerning the Pruneyard shopping center in Campbell, the California Supreme Court said a shopping mall is a public forum where free speech is protected under the state constitution.

    Monday's ruling concerned whether that doctrine extended even to speech urging a boycott of a mall store.

    Justice Ming Chin wrote in a dissent, "Private property should be treated as private property, not as a public free speech zone."

    Chin and two other justices said "the tide of history" had turned and said the original Pruneyard decision should be overruled or modified.

    The case was argued before the state high court in Santa Rosa in October at a special outreach session in which Sonoma County high school students were invited to hear the arguments and learn about court procedures.

    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

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    Thanks for the interesting article, interesting for the Constitutional/legal question and for the fact that I worked in the prune yards one of the last years that they were productive.

    In 1966 I ran the dehydrators at Lester Co.'s facility on Homestead in Santa Clara, some of that company's property became The Pruneyard. Lester was one of the 'Ls' in VALLCO, the 'V' being Varian.

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    Accomplished Advocate color of law's Avatar
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    When it comes to Malls or shopping centers they fall into a quazi public/private no man's land. Like people between 18 and 21. You are an adult but you are not.

    In Ohio you can get a ticket for parking in a handicap spot but not for a wreck. I live on a private street. The LEOs can't do anything. But Ohio law says if we the private street owners put up a speed limit sign then the LEOs can write tickets. So there is no speed limit sign on our street. And we also have a no trespassing sign posted at the enterence of the street.

    You have to remember that the Mall is a corporation and is licensed by the state.

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    I am all for "privacy rights" but when a business opens its doors to the public it must respect the rights of its patrons. The U.S. Supreme Court (a step above California's Supreme Court) has also ruled on this issue:

    Property rights versus civil liberties:

    http://caselaw.lp.findlaw.com/script...6&page=501

    In Marsh v Alabama Justice Black declares that "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."

    In summary, I do not believe that a person wishing to shop in a mall environment loses his/her right to defend life at the mall entrance.




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    If a business has its customers “Walk-In” to purchase their products or services, then even though it is a “PRIVATE” business, it is still ‘OPEN TO THE PUBLIC”. The key word …PUBLIC. Business owners should know that there will be people who come into their business that will dress differently, be of a different ethnic or religious background or maybe even of a different sex or sexual preference, which they may not agree with. So as long as the customer is not doing anything illegal, unhealthy, or unsafe they should be allowed entrance to the business.

    Think of these two situations:

    #1: I walk into a store and slip and fall on the wet floor, I can sue the business. Why..? They failed to properly provide for my safety. They put me into a situation that I had little or no control over, I was injured and therefore the laws of this state allow me to sue them.

    #2: I open my own business. I post a sign on the door that says, “NO BLACKS, JEWS OR WOMEN”

    Now how long will it take for any one of those groups of people to file a discrimination law suit against me? Then when I lose in court (which there is no doubt in my mind I will lose), how long will it take the judge to tell me to “TAKE THOSE SIGNS DOWN...!” I’m sure just shortly after he says “GUILTY OF DISCRIMINATION.!”

    Now here in Ohio, business owners are exempt from prosecution when it relates to firearms. Why..?

    I can sue your business if I fall on a wet floor, a situation which I can’t control.

    I can’t sue, if you post a sign denying me a right to carry my firearm, a situation where I could have done something about, if I was allowed to exercise my right to self defense.

    We have the “Right” not to be discriminated against. We have the “Right to Keep and Bear Arms”, but why is a business owner that is “OPEN TO THE PUBLIC” allowed to discriminate against me.?

    Am I not being discriminated against just by the fact I am wearing a firearm.

    Think about it.

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    Accomplished Advocate color of law's Avatar
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    Don't confuse Constitutional rights with civil rights. The Constitution does not confer civil rights. Civil rights are statutory in nature.

    The court could have ruled that the picketing was interfering with store access. But that was not the issue before the court.



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    Campaign Veteran deepdiver's Avatar
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    Justice Carlos Moreno, the author of the majority opinion, wrote, "Urging customers to be prepared to self-defend lies at the core of the right to keep and bear arms."
    Oh wait, this is Kalifornia.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    This is new territory for me. I'll have to give it some thought.

    Off the cuff, I'd sayprotect property rights--the mall owners.

    As I understand it, property rights are at the very innermost core of rights. Tampering with them, I think, can cause all sorts of grief. Take Kelo for example. I just came across a whole list of jurisdictions that moved forward with pending condemnations and seizures shortly after Kelo was decided, almost every one of them being turned over to developers building something more tax-productive. None were for the originally understood purpose of eminent domain--public use, e.g. tobuildschools, roads, etc.

    Now the court has moved beyond your-rights-end-where-my-rights-begin and started giving some people's rights priority over other people's rights.

    Whoa! Oursystem of governmentisalreadybecomingan arena where some special interest group or another is always trying to getadvantage oversomebody elseby getting new laws passed, regulationsadopted, etc. Now we're going to have whose rights are superior decided in courts, too?

    I'm very concerned, especially when property rights are inferior to free-speech rights. Lets not forget the free-speech right is largely to prevent tyranny. Weigh the commercial use of free-speech against the commercial use of property rights. I don't see one out-weighing the other.

    Overall, I'd say the California opinion isa net loss for liberty. They'veinfringed sacred property rights for a lessbeneficial commercial free-speech right.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    I haven't seen the story in one lump but I believe that Pfizer has abandoned the Fort Trumbull (Kelo property) project and is moving offshore.

    My interest is from the fact that I went to school at the GD/EB facility and later directed a project at SubBase New London, so I am quite familiar with the neighboring Pfizer plant and roomed for a time in Fort Trumbull.

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    color of law wrote:
    You have to remember that the Mall is a corporation and is licensed by the state.
    Corporations are juridical entities created by states.

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    This is an interesting development, but not THAT out of the ordinary.

    Property rights are considered in some legal circles as a creation of state action to begin with, in part because the enforcement of the right require state action through the judicial system via civil actions.

    Regardless, heavy handed regulation of real property is common and long accepted as constitutional in the United States. Private property is subject to state action in the form of use restrictions, zoning, inspection, destruction of trees considered noxious, suits at common law for nuisances even where new residents move to the source of the nuisance and then complain, etc. As a federal constitutional matter, regulation of real property is generally allowable unless it totally destroys the value of the property or impinges upon the right of the owner to keep others off the property.

    At common law "innkeepers and common carriers" were required to accept all comers.

    Many state and federal statutes require "places of public accommodation and housing" to accept all comers regardless of race, physical or mental handicap, etc.

    What is a little unusual is the direct application of a Constitutional element to restrain private actor power. At the federal level, we have seen only occasionally. E.g., Shelley v. Kraemer, 334 U.S. 1, (1948) (declaring racially restrictive property covenants unenforceable under the Fourteenth Amendment). In Shelly, though the Fourteenth Amendment does not apply to private actors, the court essentially said that judicial action is state action and thus the courts cannot enforce private agreements contrary to Constitutional public policy. One could make an equivalent argument on Second Amendment grounds to block courts from enforcing contracts containing anti-gun clauses.

    However Constitutional restraints do apply to private actors performing as agents of the government carrying out public functions, e.g., gun dealers doing background checks.

    So in California, we now see the Calif. S. Ct. affirming and perhaps extending its previous Pruneyard decision that property held open to the public like malls and shopping are public fora for free speech under the Calif. constitution. I welcome this development – after all, these malls are de facto now the town square, and after Kelo[/i][/b], we know that it is Constitutional for the government to take private land and turn it over to mall developers to make a mall suitable to the city fathers’ wishes.




    It is not unusual for state constitutions to be read more broadly that the federal constitution - state constitutions are a valuable source fo power to litigate against infringement of gun rights by both state and maybe private actors.

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    Mike wrote:
    SNIP we know that it is Constitutional for the government to take private land and turn it over to mall developers to make a mall suitable to the city fathers’ wishes.
    Looks like another OC opportunity! Lemme see? Oh, yes! That new office buildingbuilt onKelo-seized property, they have a nice atrium where Ishould be able to OC.

    Humoraside, I get your point,Mike.

    Initially, I would ratherthe court rule thatgovernment has no power to enforce the boycotter's so-called rights against the mall's property rights; but, I can see your point.

    I guess it comes down to two views: working within the system whenwe see an opportunity, or holding the line on expanding government power and infringing rights.

    Which really is the better view?

    If they can twist away somebody's rights, they can twist away others.

    On the other hand, maybe it is better to take what you can get, since the system seems to be more about taking. And there islittle sign ofkeeping gov'ton a strict construction path at the moment.

    Of course, one could always fight hard for ideal, and then take what you can get.

    Like Mark Twain wrote, "Its too many" for me.






    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Mike wrote:
    I welcome this development – after all, these malls are de facto now the town square, and after Kelo[/i][/b], we know that it is Constitutional for the government to take private land and turn it over to mall developers....
    Yeah, what Mike said sounds reasonable to me. Property rights are a creation of the government. Government is a creation of the people. The right of the people to keep and bear arms shall not be infringed.

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    ne1 wrote:
    SNIP Property rights are a creation of the government.
    I noticed that point in Mike's post also, but didn't feel likeaddressing it.

    Heh, heh, heh. You know I'm gonna.

    It would be just like some self-serving, arrogant, people-controlling, rights-infringing,legal circle to claim or consider thatproperty rights are the creation of state action. I'll just bet they make lots of money with whatever legal angle they can finagle with that theory.

    Horse-hockey!

    Rights are inherent inMan. The state, if it is smart, will recognize them; but it doesn't create them.

    The only reason the state has to step in and enforceproperty rights is so the weak are not preyed on by the strong, and so that two strongs don't shoot up the neighborhood sorting it out themselves. Those and making sure other government actors keep their mitts off.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Accomplished Advocate color of law's Avatar
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    Property rights is a substantive right in the private arena. Substantive rights are those rights you have from birth. Given by GOD.

    The right to breath, eat, travel and shelter are a few.

    Do you need a hunting license to hunt food to eat? No.
    Do you need a license to travel? No.
    Do you need a license/permit to build your own home? No.

    Man is territory in nature. If you didn't have property rights, the 4th Amendment would not exist.

    But once you step from private arena into the public arena, the rules change.




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    So, according to John Locke's philosophy, property rights are derived from the fruit of one's labors. Question: if a person labored his whole life to change the course of a river, does that man now own the river and all the water in it? If he is/was strong enough to alter a river, why should he need a piece of paper to enforce his property rights?What gave that man the right to interfere with the river's flow in the first place????? What about the natural rights of all the lives effected by the change?

    The strong, fighting it out in the streets- sounds like uninfringed to me. Y'know what? According to Darwin it is unnatural for the weak to survive.

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    Darwin works, whoever may deny it! The sun rises and the Earth is round, whoever may deny it.

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    I would have to say it's a lot like the smoking bans they are passing in some states. Bars, restuarants, bowling alley''s, etc. I tend to have a view that sits somewhere in between the property rights position and the free speech position. Sure, you have a right to say whatever you like, but a private property owner has the right to tell you to leave for any reason. The constitution doesn't infer rights on anyone, it simply restricts what government can and can't do. As a business owner, I can tell someone to leave simply because I don't like them. You are always free to take your business elsewhere if you don't like the rules I set for my property. Same thing with smoking, free speech, or guns...don't want me there? Fine, I don't need to go there.
    When it's public property, I understand laws prohibiting smoking (I have no right to blow smoke towards someones family picnick), but you should be able to peacefully assemble or be armed for self defense as this doesn't intrude on anyone elses rights. Just my 2 cents.

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    Accomplished Advocate color of law's Avatar
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    The sun does not rise or set. That would emply the sun revolves around the earth.

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    IndianaBoy79 wrote:
    Sure, you have a right to say whatever you like, but a private property owner has the right to tell you to leave for any reason. The constitution doesn't infer rights on anyone, it simply restricts what government can and can't do. As a business owner, I can tell someone to leave simply because I don't like them. You are always free to take your business elsewhere if you don't like the rules I set for my property. Same thing with smoking, free speech, or guns...don't want me there? Fine, I don't need to go there.
    That might be what you would like, but the reality is that the federal and state constitutions do constrain the action of private property owners, especially when they hold themselves out to be a public place, see cites above.

    Further,at common law, and modern state and federal statutory law, a business owner cannot always refuse business and eject customers because they don't like them as such actions are easily construed to violate state or federal anti-discrimination and "shall serve" laws applicable to commen carriers, inkeepers, places of public accomodation, housing, etc.

    Let's get real - every business is a highly regulated business in modern America.

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    Really, "emply?" I'll take your retort as humorous since rise and set imply no such thing.

    Learn celestial navigation that depends on rise and set and to which a modern worldview is essential and integral.

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    When it's public property, I understand laws prohibiting smoking (I have no right to blow smoke towards someones family picnick), but you should be able to peacefully assemble or be armed for self defense as this doesn't intrude on anyone elses rights.
    These days it is not so simple as prohibiting smoking, drinking, or other so-called anti-social behavior. The weak and minorities have been coddled so much that packing a peanut butter sandwich in your lunchbox or wearing a piece of jewelrycan be seen as violating someone else's rights.



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    Doug wrote

    Really, "emply?" I'll take your retort as humorous since rise and set imply no such thing.

    Learn celestial navigation that depends on rise and set and to which a modern worldview is essential and integral.


    All in jest, Perspective and/or point of view is what I was implying, as well as Relativity. We think we are standing still on earth, but in reality the earth is spinning a 1,000 MPH and the earth is moving around the sun at about 76,000 MPH. We are standing still on earth. But you are moving threw space at a high rate of speed.


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    Oh, I've read the quotes. Just giving you my ideal. Obvious we're restrained by government in this society in many things that we shouldn't be. I also hold a real estate appraising license in Indiana, and am well aware that in areas of housing and other services the government HAS passed laws concerning descrimination. But those are NOT constitutional rights, those are civil rights and a much different matter.

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    IndianaBoy79 wrote:
    Oh, I've read the quotes. Just giving you my ideal. Obvious we're restrained by government in this society in many things that we shouldn't be. I also hold a real estate appraising license in Indiana, and am well aware that in areas of housing and other services the government HAS passed laws concerning descrimination. But those are NOT constitutional rights, those are civil rights and a much different matter.
    You must have been reading my mind about 17 posts back.

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