PruneYard Shopping Center v. Robins – Oral Argument – March 18, 1980 (Part 1)

Media for PruneYard Shopping Center v. Robins

Audio Transcription for Oral Argument – March 18, 1980 (Part 2) in PruneYard Shopping Center v. Robins

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Warren E. Burger:

We’ll hear arguments next in Pruneyard Shopping Center against Robins.

Mr. Gillam, I think you may proceed whenever you’re ready.

Max L. Gillam, Jr.:

Mr. Chief Justice and may it please the Court.

The issue before the Court posed by this appeal is a narrow, very simple issue.

This arises on an appeal from a judgment of the California Supreme Court which reversed a trial court’s rejection of the request for an injunction that the Pruneyard and its owner, Fred Sahadi, be enjoined from denying access to its customers.

In other words, the appellees here moved for an injunction in the lower court to enjoin Mr. Sahadi from refusing to allow them to circulate petitions on his property.

There was a trial of this request for an injunction.

Specific findings were made by the trial court as to the existence of adequate available alternatives in that Santa Clara County.

This was coupled with the conclusion of law framed in basically, the terms of Lloyd versus Tanner to the effect that other effective mean — means of communication existed in the community.

The denial of the injunction was affirmed by the District Court of Appeals and when the case reached the California Supreme Court, that court reversing its prior holding and what is adverted to in the briefs as Diamond II, asserted that the free speech portion of the California Constitution required a reversal of the trial court and the admission to Mr. Sahadi’s premises of the persons who wished to circulate petitions.

This Court, as it did in the Miami Herald case, deferred the question of jurisdiction until the time of the hearing on the merits.

We would — we have briefed pursuant to this rule’s federal — this Court’s Rule 16, at the outset of our brief, the jurisdictional questions.

It seems obvious that the decision below upheld the validity of a free speech portion of the California Constitution against a contention that the construction sought of that constitutional provision denied Mr. Sahadi and the Pruneyard their rights under the Fifth, Fourteenth and First Amendments.

We would therefore, submit that appeal is the proper remedy that there is federal jurisdiction and not any substantial federal jurisdiction and that in the alternative as we requested in our jurisdictional statement, if this Court should feel that appeal was not the proper route, to please accept certiorari.

I stated at the outset that this was a simple, narrow case.

It does not involve any attempt to regulate the content of speech.

It does not relate to any ability on the part of Mr. Sahadi to deny his shopping center customers the receipt of any view which the appellees would choose to put upon them.

The adequate available alternatives finding, we think, is extremely important when it’s coupled with the finding that the policy against solicitation was uniformly and disinterestedly — disinterestedly applied by the center.

I would like to call your attention to the specific finding on adequate alternatives in Santa Clara County.

The finding of fact which was entered by the trial court and which was never contested at the trial or any appellate level was stated in the following manner.

The county in which the center is located has many shopping centers, public shopping and business areas, public buildings, parks, stadia, universities, colleges, schools, post offices and similar public areas where large numbers of people congregate and where people can freely exercise First Amendment rights including without limitation, distribution of handbills and seeking signatures on petitions.

Thurgood Marshall:

Do I understand you that you can distribute the handbills in the post office?

Max L. Gillam, Jr.:

On the sidewalks adjoining post offices, sir.

Thurgood Marshall:

No, you said building.

Max L. Gillam, Jr.:

Yes, sir.

Thurgood Marshall:

I know, I don’t just —

Max L. Gillam, Jr.:

Mr. Justice Marshall, I think it’s important to focus on this from the standpoint of language you used in Hudgens, because we read your opinion in Hudgens as being concerned with the availability of the means for communicating ideas.

Thurgood Marshall:

It didn’t — it didn’t involve post office.

Max L. Gillam, Jr.:

Yes, sir.

It did not.

Max L. Gillam, Jr.:

But we think this is a very key finding of fact which I say, was never challenged and a conclusion of law which then followed after the trial was never challenged and that conclusion was that there are adequate effective channels of communication for plaintiffs other than soliciting on the private property of the center.

The center with capital C, and it was defined to mean the Pruneyard Shopping Center and its owner, Mr. Fred Sahadi, the alternate, adequate, available, other places in which to solicit.

That is the state of the record which is before the Court in this case.

William H. Rehnquist:

Well, Mr. Gillam, can’t — couldn’t you equally well attack a zoning ordinance by saying that there are other places you could build this same kind of factory and therefore, the State’s prohibition of your building adhered — is unconstitutional?

Max L. Gillam, Jr.:

No, sir.

I would assume that there could be a set circumstances or facts which might permit you that kind of attack.

I cannot conceive them as I sit here right now.

I know that Agins versus Tiburon is coming up on this Court’s docket, which deals with the similar question of whether after engaging in a condemnation proceeding and running out of money, the City of Tiburon could then zone the land it was prepared to condemn.

So, under certain circumstances, I think you could make that argument, but ordinarily speaking, the right to zone would not involve anything with respect to the property right to the extent that is at issue in this case.

William H. Rehnquist:

But it — isn’t it basically the old Mahon versus Pennsylvania Coal case that the State can limit the use of private property or place certain restriction on up to a point, but if it virtually destroys its use or comes close to significantly destroying its use, then it has to — it has to pay just compensation and it’s kind of a hard line to draw?

Max L. Gillam, Jr.:

I do not believe that it would have to go to the extent to which the Court refers in virtually destroying the value of the land as in a condemnation case.

Zoning is an effective condemnation.

This Court in determining whether an interest which the State has denominated a — an interest in property or the nonexistence of it, has historically applied federal standards to determine whether that which was involved constituted property and imposing the new legal disability on any prior freedom or property invites federal examination.

The situation here is, that with respect to soliciting at shopping centers, this California Supreme Court in reliance on this Court’s opinion in Logan Valley had held that the shopping center could not exclude expressive activity.

Subsequent to this Court’s opinion in Lloyd versus Tanner, the California Supreme Court reversed that position and held that the shopping centers could, under the federal principles articulated in Lloyd versus Tanner, exclude expressive activity of this type on the assumption if, I should say if, there were adequate available opportunities in the community for expressive activity.

It was only in this case in which the California Supreme Court by a 4 to 3 majority, changed that rule.

And in effect, deprived Mr. Sahadi of what had been regarded as a property right up to that time.

Harry A. Blackmun:

And it did so under the California Constitution ostensibly?

Max L. Gillam, Jr.:

Yes, sir and did that under the California constitutional provision.

Harry A. Blackmun:

Do you — do you feel that an affirmance here will necessitate an overruling of Lloyd against Tanner?

Max L. Gillam, Jr.:

It would not necessitate an overruling of the precise holding in Lloyd.

However, it would necessitate an overruling or a refusal to apply the principles which formed the underpinning of the Lloyd decision.

The question in Lloyd really is whether the shopping center was such a creature of the State or the equivalent of a municipality as to — as to have adopted the position of the State for First Amendment purposes.

That is the specific issue that was before Lloyd.

Byron R. White:

And if the — and if the center isn’t they — an arm of the State, why, no matter how many free speech rights an individual has, he hasn’t got them against a private person.

Max L. Gillam, Jr.:

On the assumption that this Court applies the principles as articulated in Lloyd and that is that there are adequate available alternatives.

That is part of the analysis on the closeness of a shopping center to the State.

William H. Rehnquist:

But in — in Lloyd and Hudgens, the people who wanted to distribute leaflets were coming here simply claiming that the First and Fourteenth Amendments gave them that right.

Here, they’re coming here saying that the California Property Law gives them that right.

They don’t have to rely on the Federal Constitution.

Max L. Gillam, Jr.:

No, sir and this is a new found California property right, which is asserted against what this Court has historically viewed as federal due process and First Amendment rights.

The —

Harry A. Blackmun:

Maybe new found, but haven’t we historically attributed to state law the boundaries of property rights?

I — I sympathize with you when you get a 4 to 3 decision in your Court, with very strongly —

Max L. Gillam, Jr.:

The interests are created by state law.

There is no question about that, but their characterization as property for due processes is determined by federal standards.

Byron R. White:

Well, suppose — suppose the man owns a shopping center or a grocery store or something and there are no relevant statutes at all and someone comes in and wants to pass out leaflets.

He says, “Get off of my property” and he can throw him off, even the fellow says “I’ve got — just think of my speech rights” and he says, “Tell it to the State.”

It protects you against state interference, “Don’t interfere, you just get out of my place.”

What is that — what if the — what if the — if there is a statute passed by the State that says that all owners of shopping centers will — must let on to their property, people who want to picket their lessees.

Max L. Gillam, Jr.:

I think, Your Honor that the —

Byron R. White:

And then of — of — the State has some — some power to regulate property rights?

Max L. Gillam, Jr.:

Yes, Mr. Justice White.

They do have power to regulate property rights, but they do not have the power in an unreasonable manner and sub — subject to the federal test on what constitutes property.

Byron R. White:

Well, what the —

Max L. Gillam, Jr.:

The right to take away.

May I give an example?

Byron R. White:

Well, just forget that.

In my example there is no federal interest, yet whatsoever.

There’s just a state law that says that — that picketers come on your property.

Max L. Gillam, Jr.:

What — basically, this Court talked about in Lloyd and in Hudgens and Babcock & Wilcox and the labor cases is what kind of accommodation must there be between statutory matters such as set forth in the NLRA and the interest of the property owner or in this case, the speaker or non-speaker?

And this Court in these decisions has sought for an accommodation such that the historic rights of property, the things generally associated with property would not be diluted except to the extent necessary to fulfill the purposes of the Act and the NLRA industrial peace.

And this Court has consistently now, looked to adequate available alternatives before stating that the Union could enter on to private property either for organizational activity or for picketing and protest of a strike.

Byron R. White:

Well, I know, but you’re just — so you’re just saying that whether the State had a — a statute like I just suggested that it would be unconstitutional on its face?

Max L. Gillam, Jr.:

No, sir.

It would not be unconstitutional on its face and —

Byron R. White:

Well, for — for a failure to be more — be more precise.

Max L. Gillam, Jr.:

I — I can anticipate the possibility of a small state such as Rhode Island, holding legislative hearings and having testimony of fact appear before it, and the legislature coming to factual conclusions in the legislative history, to the effect that in the absence of access to shopping centers, there were no alternatives available opportunities to persons for expressive activity.

We have the exact opportunity in this case.

The California —

William H. Rehnquist:

Well, would that — would that Rhode Island conclusion means that the Rhode Island legislature was mandated to put a limitation on property rights or only that it could?

Max L. Gillam, Jr.:

It would only indicate that it could.

That would not — I hasten to add, immunize it from an attack by somebody who differed with that conclusion.

But in this case, California, an absolutist, simplistic label of, “shopping center” and used statistics that indicated that shopping centers had increased greatly.

But they were faced with the finding of fact and conclusion of law below, as to the existence of quantities of available adequate alternatives.

And a conclusion that effective means of communication for expressive activity existed outside of Mr. Sahadi’s shopping center.

Byron R. White:

Are you stating that we’re taking the same approach, if there is a state statute which says that at Christmas time, the Salvation Army and other charitable organizations may — may setup little stands to raise money?

Max L. Gillam, Jr.:

I —

Byron R. White:

In shopping centers?

Max L. Gillam, Jr.:

Yes, sir.

I would certainly take the same position.

I would analogize after Wooley versus Maynard.

Byron R. White:

That the State is — that the State has disentitled under its — its many powers to limit your property rights to that extent.

Max L. Gillam, Jr.:

Yes, sir.

Absent — some adequate basis which would indicate that accommodations of conflicting rights would require a diminution in my free speech rights and in my property rights, under the —

Byron R. White:

Are you — are — are you relying in this case on — on the right — on the — on the free speech rights of the —

Max L. Gillam, Jr.:

Yes, sir.

Byron R. White:

— the owner?

Max L. Gillam, Jr.:

This was raised before the California Supreme Court in the brief.

Byron R. White:

And you don’t need to provide us to have a forum for views with which you don’t agree with — with which you don’t agree?

Max L. Gillam, Jr.:

No, sir.

Same that —

Byron R. White:

No, sir or yes, sir.

Max L. Gillam, Jr.:

— we were not required to speak — that we have a constitutional right to remain silent.

Remember the finding in the lower court that Mr. Sahadi had a uniform policy against any form of non-business related expressive activity.

And we asserted his right to remain silent and to not permit his property to be utilized for the expression of any ideas.

Warren E. Burger:

Under this opinion as it stands now, of the California Supreme Court, if 25 different groups wanted to handout leaflets or get petitions signed on the same Saturday, could they do it?

Max L. Gillam, Jr.:

I — under this opinion, each shopping center is directed to be a municipality and pick out reasonable time, places and manners.

And I assume if it was a shopping center that was sufficiently profitable so that it could employ lawyers, the lawyers could come up with a set of such standards, which would permit it to limit the number at any given time or any place.

Warren E. Burger:

Sort of a licensing program?

Max L. Gillam, Jr.:

Yes, sir.

What the —

Warren E. Burger:

Like a permit for a parade?

Max L. Gillam, Jr.:

What the California Supreme Court has done is make every shopping center, however labeled, the functional equivalent of a municipality.

Thurgood Marshall:

Didn’t the Supreme Court say they can establish reasonable regulation?

Max L. Gillam, Jr.:

Yes, sir, the same way that the one in municipalities got.

Thurgood Marshall:

And wouldn’t (Voice Overlap) regulation be that you got 25 groups at one time?

It wouldn’t be possible for us to run our business.

Max L. Gillam, Jr.:

Yes, sir.

Thurgood Marshall:

Wouldn’t that be considered reasonable?

Max L. Gillam, Jr.:

I — I would think it would, Your Honor.

Byron R. White:

But they had — but I suppose some content differentiation wouldn’t be reasonable.

If he said, “Well, there are some people I had in my property — with some people, I just had (Voice Overlap) —

Max L. Gillam, Jr.:

Implicit in the California Supreme Court opinion is no control over content at all.

Also implicit, is no right to remain silent even if there are adequate alternatives available.

It’s our contention Your Honors that under the opinion of the California Supreme Court, the Supremacy Clause stops at the California border and we would respectfully request that this Court reverse that opinion.

Byron R. White:

Where did the — where did the Supreme Court say this activity could take place?

In the public areas on the —

Max L. Gillam, Jr.:

I’d —

Byron R. White:

— in the mall?

Max L. Gillam, Jr.:

— on the areas of the shopping center is constituted private property, subject to reasonable regulations as to time, place and manner.

Byron R. White:

What about in — what about in the stores, it didn’t say —

Max L. Gillam, Jr.:

No indication, sir.

Under the reasoning of the California Supreme Court, if I were to hold a garage sale in my residence —

Byron R. White:

How about stores, you can go into the stores and handout leaflets?

Max L. Gillam, Jr.:

I — I am not certain, because it is not clear, but if I were to hold a garage sale and open it to the public, there is no way as I view this, the logic of this opinion that I could keep out a Saffron Robe, bookseller.

It’s part of the Hare Krishna religion to sell books.

Thurgood Marshall:

I misunderstood you.

I thought you’ve mentioned that those sections were limited to the shopping centers.

Max L. Gillam, Jr.:

As the California Supreme Court —

Thurgood Marshall:

You didn’t say that.

I misunderstood you there.

Max L. Gillam, Jr.:

No, sir.

They said shopping centers and they quoted in their opinion Judge Newman the portion of Judge Mosk’s prior dissent in Diamond II, in which he stated, this is not to say that these rules would apply to modest retail establishments or private homes.

That’s the only indication we have, but if I have a garage sale at my private home, by the logic in the California Supreme Court, I have invited people on to my property to purchase.

And I don’t know what a modest retail establishment is.

I — when I’m in Los Angeles, worked in the Bank of America Tower, perhaps, the Bank of America would be regarded as an immodest commercial establishment because there are three floors of stores in there.

Thurgood Marshall:

And also think of Madison Square Garden would not be too, but that doesn’t have anything to do with this case.

Max L. Gillam, Jr.:

Yes, sir.

Except for the fact that on the logic of the Supreme Court, if you are conducting a business, you must permit expressive activity as I read it.

Thurgood Marshall:

(Voice Overlap) —

Max L. Gillam, Jr.:

Because there is no definition of a shopping center.

Thurgood Marshall:

Would that include dentist office?

Max L. Gillam, Jr.:

Sir?

Thurgood Marshall:

Would that include the dentist office?

Max L. Gillam, Jr.:

If he invites the public, I would have to assume that it would.

John Paul Stevens:

Mr. Gillam, I don’t really read the California Supreme Court opinion quite as broadly as that.

This case involves a 21-acre shopping center.

And I just want to ask you, I — is it your position that if there were a California statute or a California zoning regulation that said, “In all shopping centers of over 20 acres, there must be allowed a reasonable opportunity for — for picketing or — or leafleting,” that that would be unconstitutional?

Max L. Gillam, Jr.:

Yes, sir.

I’d — if — if absent —

John Paul Stevens:

But if you don’t make any findings about adequate alternatives —

Max L. Gillam, Jr.:

Yes, sir.

John Paul Stevens:

— that would be on its face, an — an unjustified interference of property rights.

Max L. Gillam, Jr.:

If I could go before a court and establish as a fact in an adversary proceeding, that 20 acres was an unreasonable limitation, because with respect to my property, there were adequate available alternatives, I would think it would be unconstitutional in its application to me because I would think that in that case, there was no interest.

John Paul Stevens:

Would you same thing about a statute that said that union picketing is — is — shall be permitted in shopping centers of over this size?

Max L. Gillam, Jr.:

That’s one interesting aspect to the California Supreme Court opinion.

John Paul Stevens:

Yes.

Max L. Gillam, Jr.:

Because under this opinion, now, union picketing would be allowed which would not be permitted under National Labor Relations Act and you’re going to have an interesting preemption question that you will have to face in the future assuming the California Supreme Court opinion stands.

I’m not sure that I ended up reserving as much time as I’d like to thank you, Your Honor.

Warren E. Burger:

Yes, you have five minutes remaining.

Mr. Hammer.

Philip L. Hammer:

Mr. Chief Justice and may it please the Court.

The California Supreme Court has ruled in this case that the State Constitution protects the right of individuals to solicit signatures on a petition to their government on the premises of a privately owned shopping center.

We contend that the United States Constitution does not prohibit the State of California from so regulating the use of private property within its borders since the California Supreme Court specifically found that the public welfare would be substantially impaired, if that right were denied.

Warren E. Burger:

Is this confined in your view to petitions to the Government?

Philip L. Hammer:

Well, the — the reference by the California Supreme Court was to Article 1 Section 3, which is our state constitutional right of petition to our Government, yes, sir.

That’s if —

Warren E. Burger:

And what if — what if on its face, it was a petition to the Government, but in fact that that was spurious that it really was just a propaganda measure of — in favor of the PLO, let us say, or the Irish Republican Army.

Philip L. Hammer:

Well, I don’t know whether such petitions would on their face be spurious but a — the right of California citizens to petition their Government, which consists of Government at many levels, is a — a very vital right in the —

Warren E. Burger:

Well, would you think that California —

Philip L. Hammer:

— petitioning in this case was to —

Warren E. Burger:

— would you think that California under our system has anything to do with race — in relations with the PLO or the IRA?

Philip L. Hammer:

Well, the —

Warren E. Burger:

This was a (Voice Overlap) —

Philip L. Hammer:

— the state government may not, although the state government may declare itself on international issues, the petitions in this case where addressed to the National Government, to the — to President Ford and to Congress.

We are seeking to uphold the right to petition in California.

Our — our Supreme Court’s decision stresses the very vital nature of that right in the California scheme of things.

In our State, perhaps different — from other places, the citizen uses the petition for direct access to the process of self-government.

In recent times, the people have seen fit to restructure the property tax base for financing local government, have adopted a protective mechanism for our coastline and have enacted far-reaching campaign reforms, just to mention a few.

Warren E. Burger:

And this is related to your tradition of public referenda on many, many issues?

Philip L. Hammer:

Yes, sir.

That’s in — in California, referenda, initiatives, recall and simply the broad right to — to petition Government is — is a part of our life.

The — the Supreme Court determined that the right of petition is threatened, if it is not accessible in the common areas of shopping centers.

Here also, the decision of our highest court goes to great pains to describe how vital that access is.

Shopping centers dominate retail commerce in our State.

And particularly, the community in which this case arose.

The traditional forums for public discussion, the public streets, town squares, public parks and the like are dead or fast dying.

As the California court found, central business districts of municipalities have yielded their functions to suburban shopping centers.

Having caused the demise of the traditional forum in California and reasonable access to a forum having been found essential to the public welfare, shopping centers in California are as a result of the decision in this case, subject to a rule of law prohibiting them from denying the right to circulate a petition, subject of course, to the reasonable restrictions as to time, place and manner.

Warren E. Burger:

Nothing on content though.

Philip L. Hammer:

Nothing on content, sir.

Warren E. Burger:

What if a shopping center was owned by a church organization?

Philip L. Hammer:

Yes.

Warren E. Burger:

Let us say the Archdiocese of San Francisco, if — if that is an archdiocese and the petitions are petitions that are pro-abortion or some other issue which is directly in conflict with the philosophy and dogma of the owner, any — any — what’s the situation under the California decision?

Philip L. Hammer:

Well, sir — Mr. Chief Justice Burger, I — I think that that is a — a different situation, but it is one that the California Supreme — it might raise a conflict between two rights that are not present in this case and the California Supreme Court or the state court system would be well equipped under its Constitution and under the Constitution of the United States to resolve what might be a conflict of rights, if the center were well known as being a place owned by a religious body.

In this, in the situation that the Court is reviewing here of course, there is no such identification of the penury.

Warren E. Burger:

Of the same — I suppose it’s the same kind of a conflict on content might arise, if for example, an international union owned a 21-acre shopping center, which it might as a matter of investment.

And what — were — could you say to them about the — the right to work, petitions for the right to work, which are certainly in conflict with organized labor’s views?

Philip L. Hammer:

The —

Warren E. Burger:

Must they allow them or not under this decision?

Philip L. Hammer:

I think under this Court’s decision no matter who owns the shopping center, the rule applies within California.

I’d pointed to the religious ownership problem as one that might raise other constitutional issues, but I think implicit in what the appellant is trying to argue with respect to its First Amendment rights, is that somehow, the — a shopping center is in the communications business as to ideas.

And that —

Byron R. White:

There’s been an owner — he’s just suggesting the owner objects to presenting a forum or a pedestal for views that he’d — doesn’t necessarily agree with or for any views.

Isn’t that a perfectly legitimate claim by the property owner?

Philip L. Hammer:

The — the property owner may object to the — to the regulation that’s now applicable in California as a result of this case.

Byron R. White:

Well, most property owners, if you’re not talking about shopping centers, you’re talking about your front yard, somebody comes along, wants to make a speech in your front yard.

You say, “Well, what are you going to say?”

He says, “I’m going to say so and so.”

I say, “Great, come on.

Let’s have a big speech right here in my front yard, we’ll get a crowd.”

Next guy comes along and says “I’d like to speak in your front yard, what are you going to say?”

He tells me — as a — “Awfully, sorry, I am not least interested in that and just stay offs my property.”

That’s what most property owners can do, I’d suppose.

Philip L. Hammer:

Yes.

Most property owners —

Byron R. White:

And why do it – can’t this man — why can’t this man do it, when he says, “I don’t want anybody coming onto my property to say anything?”

Philip L. Hammer:

Because the law in California now, imposes a regulation, a restriction of what — what might otherwise have been as arbitrary power, based upon the role he plays that particular owner of that particular kind of property in our society —

Potter Stewart:

What if the law of California imposed a restriction of — upon the householders, upon the property right of householders?

Potter Stewart:

It said to you, “Anybody can come on anybody’s front yard and picket the way they did here, with shopping centers.”

Would that present any question or problem in your —

Philip L. Hammer:

In my mind, sir, that might well present due process problems.

That there is —

Potter Stewart:

If that does, why doesn’t this?

Philip L. Hammer:

Because the California court which is —

Potter Stewart:

Well, I’m — I’m assuming the California court, had done the same thing with regard to the front yards of householders.

So you can’t rely about what the California court did.

I’m assuming in both cases —

Philip L. Hammer:

Well —

Potter Stewart:

— when your court did precisely what it —

Philip L. Hammer:

But in this case —

Potter Stewart:

— did in this case and what it did in my hypothetical case.

Philip L. Hammer:

In this case, sir, we are faced with a finding a — about a situation in California that specifically involved shopping centers and not houses.

Potter Stewart:

And what if they were finding that specifically involves the front yards of householders?

Philip L. Hammer:

I think the —

Potter Stewart:

Why would that — if — if that presents a constitutional question, why doesn’t this, (Inaudible)

Philip L. Hammer:

The — that would — a — a rule that it — that applied to individual householders would offend I suppose decent standards of fairness and decency —

Potter Stewart:

Well, it defends to your brother and — and his client.

Philip L. Hammer:

The — I guess, I am — I am saying as to the regulation here which was geared to the public welfare of the people of California —

Potter Stewart:

Well, let’s assume of a hypothetical case that all of that was (Inaudible) by the Supreme Court of California and that but — but that the factual context of the case were not a shopping center, but rather somebody’s front yard.

Philip L. Hammer:

Yes sir.

I would assume this Court would as it does with state’s efforts to deal with local problems, assume the legislative enactment or the regulation to be a valid one, if it offended the — the Court’s basic sense of — of justice —

Potter Stewart:

No, no.

It has to offend the Constitution.

Philip L. Hammer:

Well, but the — the Due Process Clause as applied to economic regulation in this Court’s application of that —

Potter Stewart:

Would that be — would that be a taking without compensation?

Philip L. Hammer:

Well, it again falls back upon the — the basis of the regulation.

Is it a reasonable regulation based upon the public welfare?

Potter Stewart:

And then California found it was.

Philip L. Hammer:

Okay.

And if California found that such a regulation applicable to an individual household was related to a public — to the public welfare, health, safety and morals, then, I would — I would think the assumption would be that it would not be a taking, but the — there are other inquiries in connection with the Takings Clause.

And that would — has —

Potter Stewart:

I mean the householders own free speech rights?

Philip L. Hammer:

Yes.

Potter Stewart:

As well as the —

Philip L. Hammer:

The — the reasonable expectations of the homeowner, would be that the front yard is —

Potter Stewart:

It wouldn’t be in California after — after that decision, until it is reversed by this Court.

Philip L. Hammer:

But the reasonable expectations of a shopping center owner are very different from the — those of the homeowner.

Potter Stewart:

We are now, after this disposition of the Supreme Court of California.

Philip L. Hammer:

But were for years, before Diamond II, the — the shopping center owner as was pointed out in one of the briefs, pre1974, pre-Diamond II, shopping centers have been subject to this kind of rule of law for —

Byron R. White:

By a degree you do —

Philip L. Hammer:

— a decade, sir.

Byron R. White:

I’m not sure that there — that it’s just now a property right question.

It — it just isn’t that California may limit the — may define property rights and say, “Look, all private property owner in this State are subject to some limitations.”

And one of the limitations is that leaflets maybe passed out on any privately owned property in the State.

What if the legislature just passed that and say, “And under California law then property — the owner of property just doesn’t have the right to keep people off for that purpose, but there would be another interest involved wouldn’t there, in the property owner?

His — his First Amendment rights?

Philip L. Hammer:

Well, there would be —

Byron R. White:

Which — which isn’t — which doesn’t depend on — doesn’t depend on California law at all.

Philip L. Hammer:

This matter of private residences, obviously, there are many interests of individuals involved in that kind of situation that are not present here, the right to privacy, the very notion of having a private home.

Byron R. White:

(Voice overlap) First Amendment that — with you.

I’m talking about the First Amendment (Voice Overlap) —

Philip L. Hammer:

And — and the First Amendment right, but to be —

Byron R. White:

Required on my property and not to — not to spread — spread the word that I don’t want spread.

Warren E. Burger:

The right to privacy flows from the First Amendment.

Haven’t we suggested that?

Philip L. Hammer:

Yes, sir.

William H. Rehnquist:

Well, the right to privacy is exactly what the Supreme Court of California majority is trying to get — get a — try to — trying to in — in effect, minimize by this regulation because to — to take a finding that the Bel Air area in Los Angeles, which — the only way to reach Bel Air residence is by leafleting on their property since they all have five acre estates and they never leave them except in Mercedes Benz cars.

[Laughter] The — the — that would be in a sense, an attack on their right of privacy and yet, it would open up the channels of the First Amendment communication.

Philip L. Hammer:

Justice Rehnquist, the — when business is regulated by Government, private decisions that theretofore have been that of the proprietor are in a sense removed.

That is what has occurred as a result of this rule of law.

A — what otherwise had been discretionary to the property owner, the right to exclude and control the kind of communication on this particular kind of property, is now subject to a regulation if it’s a shopping center.

Byron R. White:

What about The J.C. Penney — the J.C. Penney lessee in that shopping center, Is he — he’s subject to the same rule, isn’t he?

Philip L. Hammer:

No, sir.

The — the rule applies to the common areas of shopping centers.

The shopping center owner —

Byron R. White:

But it — under — under your approach, it would be — it would take you right into the store, wouldn’t it?

Philip L. Hammer:

No, sir.

Byron R. White:

Your principle?

Philip L. Hammer:

No, sir.

The —

Byron R. White:

How were — where would you stop?

What would keep the — what would keep leafleting out of the J.C. Penney store?

Philip L. Hammer:

Well, first of all, it’s not a question of where would I stop and it would be what the — where would the California court stop —

Byron R. White:

No, no.

What I’m not asking you —

Philip L. Hammer:

— but what they have —

Byron R. White:

— where would your principle stop?

Philip L. Hammer:

My principle applies to the common areas of shopping centers.

This is —

Byron R. White:

Why not — why not to the J.C. Penney store?

Philip L. Hammer:

Because the common area of shopping centers is what has been found to have replaced the public forum.

This is the place where without the requirement of — of buying anything — doing any commerce, the public is invited.

Shopping centers in our area send out flyers, advertise fashion shows, band concerts, a whole variety of activities in the common area, where people are just urged to come and be — and while they are there, it is hoped by the center owner that they will shop, but common areas of shopping centers are a phenomenon all through themselves in California.

Warren E. Burger:

I’m not sure anyone can legally define a shopping center and know precisely what it is.

Let me give you this hypothetical —

Philip L. Hammer:

Yes, sir.

Warren E. Burger:

There are now areas in shopping centers, if you want to call them that, as much as a city per square block of open areas surrounded by shops, but covered over entirely.

Now, is that common area open to this kind of picketing under the California decision — this kind of leafleting —

Philip L. Hammer:

If I —

Warren E. Burger:

— in the California decision?

Philip L. Hammer:

If — if I understand your question, simply the covering of the common area, would that make a distinction?

I think no.

It is still the common area in which commerce does not take place, but where people congregate because of the beauty of the place, because it is part of the attractiveness of the center.

Warren E. Burger:

Well, now, a variation of that would be some of the modern hotel lobbies, which are huge lobbies again surrounded by 15, 20, 25 stores on the ground floor, accessible from the lobby of the hotel, also accessible from the street.

Leafleting in that lobby of the hotel?

Philip L. Hammer:

It is the phenomenon of the shopping center that the California court found has replaced the traditional forum.

It is not the lobbies of the hotel.

Warren E. Burger:

Well, as what I’ve just —

Philip L. Hammer:

And I —

Warren E. Burger:

— like to view the functionally equivalent of a shopping center.

Philip L. Hammer:

No, it is not, Your Honor.

Because it is — well, I — I suppose under certain fact situations, if I know some of our hotels where there are a circle of retail stores and so — that do surround the lobby, it might be a factual matter for the state court to weigh whether that falls within the ambit of Robins versus the Pruneyard, as the case is known in California.

But clearly, the — the decision is related to shopping centers and not hotels, but I think the state court could deal with that.

The – the situate — the scene in California is really quite different as compared to this beautiful city.

The — that people in — in many of our areas of California are rarely found on — on public property.

They’re in their homes and workplaces, they’re in their automobiles and they’re at privately-owned shopping centers.

They are rarely on the public streets and the ruling in this case is really responsive to that local situation.

Warren E. Burger:

We’ll resume there at 1 o’clock —

Philip L. Hammer:

Thank you.

Warren E. Burger:

— counsel.