PROPERTY A SLIDES2-6-15

Friday Feb 6: Music Tina Turner, Private Dancer

(1984)

PROPERTY A: 2/6

As Valentine’s Day As Valentine’s Day Approaches: Approaches:

Too Much Too Much

Part TwoPart Two

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I’ve seen those Kay Jewelers ads …

… but frankly, if I give someone a $5000 diamond bracelet, …

… I’m looking for a little more than a kiss. That’s why I shop at …

Eff Eff JewelersJewelers

Taking Care Taking Care of Your Family Jewels of Your Family Jewels

PROPERTY A (2/6)I.I. Review Problem 1J (Redwood) Review Problem 1J (Redwood)

(cont’d)(cont’d)II. Free Speech Rights (Arches)

III. Introduction to Eminent Domain

Apologies for Problems with Apologies for Problems with

Parallel Parking Yesterday Parallel Parking Yesterday

Redwoods & Ferns

Right to Exclude: Review Problem 1JRight to Exclude: Review Problem 1J

Client uses MWs living onsite to pick crops Client uses MWs living onsite to pick crops several wks/yr.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 Yesterday: Gen’l Legal Framework & Qs re Religious ServicesReligious Services

Right to Exclude: Review Problem 1J Right to Exclude: Review Problem 1J (Redwood)(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 Right to Exclude: Review Problem 1J (Redwood)(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 Right to Exclude: Review Problem 1J (Redwood)(Redwood)

Legal & Factual Research Relevant to The Neighboring Farms that Employ MWs

Right to Exclude: Review Problem 1J Right to Exclude: Review Problem 1J (Redwood)(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.II. Free Speech Rights (Arches)Free Speech Rights (Arches)III. Introduction to Eminent Domain (Yellowstone)

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

Transition Quote (N3 on P84)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 1.24-1.28

DELICATE ARCHES

ARCHES Electronic Cold Call: DQ1.28ARCHES Electronic Cold Call: DQ1.28E-Mail Your Response to Me by 2:00 p.m.

TomorrowDQ1.28. 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: Overview: Overview • NJSCT holds that large shopping centers must

permit protestors to have access to hand out leaflets on social issues.

• Our Coverage1. Relevant Interests (DQ1.24-1.25)

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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.24: O’s Interests (Arches): 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.24: O’s Interests (Arches): DQ1.24: O’s Interests (Arches) Possible harms to the owners in JMB:

1.Forced Speech•1st 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.24 O’s Interests (Arches): DQ1.24 O’s Interests (Arches) Possible harms to the owners in JMB:

1.Forced Speech•1st 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.24: O’s Interests (Arches): 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.24: O’s Interests (Arches): 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.24: O’s Interests (Arches): 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 PublicRight to Exclude: Parcels Open to the PublicJMBJMB: DQ1.24: O’s Interests (Arches): 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 PublicRight to Exclude: Parcels Open to the PublicJMBJMB: DQ1.24: O’s Interests (Arches): 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.25: Public Interest (Arches): 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.25: Public Interest (Arches): 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 Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.25: Public Interest (Arches): 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.

• BUT maybe most cost-effective way to reach public in SUBURBSSUBURBS when opinion decided in 1994.

Why Might 1994 Be Significant for Thinking About These Interests?

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMBJMB: DQ1.25: Public Interest (Arches): 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 Right to Exclude: Parcels Open to the PublicPublic

Logic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background

• Federal Cases (Discussed in JMB P88-89): • Marsh: Company town: 1st 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 Right to Exclude: Parcels Open to the PublicPublic

Logic of Logic of JMB: JMB: Constitutional BackgroundConstitutional 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 4th Amdt

• E.g., by protecting speech more than Fedl 1st Amdt

• We’ll see again in Chapter 2

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Constitutional BackgroundConstitutional 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 SPEECH PROTECTED BY PROTECTED BY FED’L 1FED’L 1STST AMDT AMDT

SPEECH PROTECTED SPEECH PROTECTED BY STATE 1BY STATE 1STST AMDT AMDT

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background

Pruneyard (Cal. 1979) aff’d (US 1980)•Calif SCt says its state 1st Amdt protects speech more than Fedl 1st 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 5th and 14th Amdts of Fedl Constitution:

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background

Pruneyard (Cal. 1979) aff’d (US 1980)•Calif SCt says its state 1st Amdt protects speech more than Fedl 1st 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 5th and 14th 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 1st Amdt allows (but doesn’t require)

• Federal 5th/14th Amdts don’t forbid

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Constitutional BackgroundConstitutional 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 SPEECH PROTECTED BY PROTECTED BY FED’L 1FED’L 1STST AMDT AMDT BETWEEN FED’L REQUIREMENTS = BETWEEN FED’L REQUIREMENTS =

ZONE OF STATE CHOICEZONE OF STATE CHOICE

GOVT ACTIONS GOVT ACTIONS BANNED BY BANNED BY

FED’L 5th AMDTFED’L 5th AMDTProperty RtsProperty Rts

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background

• In JMB, NJ follows Calif & says its state 1st Amdt gives its citizens the right to free speech in Shopping Centers

• Calif & NJ only states to do this through state 1st 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 Other states do not allow speech access to shopping centers.shopping centers.

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)Analysis)

JMB Follows & Applies Schmid (NJ 1980)

•Schmid : Schmid : Free Speech access to Princeton Free Speech access to Princeton Univ.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 PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)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 1st 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 PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)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 1st Amdt

• Cites/discusses Shack• Again suggests can use JMB/Schmid to support other

kinds of limits on rt excl besides 1st Amdt

Qs on JMB Reasoning?