PruneYard Shopping Center v. Robins

PETITIONER:PruneYard Shopping Center
RESPONDENT:Robins
LOCATION: The Pruneyard

DOCKET NO.: 79-289
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Supreme Court of California

CITATION: 447 US 74 (1980)
ARGUED: Mar 18, 1980
DECIDED: Jun 09, 1980

ADVOCATES:
Elinor Hadley Stillman – for United States, as amicus curiae, by special leave of Court
Elinor Hadley Stillman – Argued the cause for the United States as amicus curiae urging affirmance
Max L. Gillam, Jr. – Argued the cause for the appellants
Philip L. Hammer – Argued the cause for the appellee

Facts of the case

High school students seeking support for their opposition to a United Nations resolution against Zionism set up a table in PruneYard to distribute literature and solicit signatures for a petition. A security guard told them to leave since their actions violated the shopping center’s regulations against “publicly expressive” activities.

Question

Did PruneYard’s regulations violate the students’ free speech rights?

Warren E. Burger:

Ms. Stillman, you may proceed whenever you’re ready.

Elinor Hadley Stillman:

Mr. Chief Justice and may it please the Court.

Appellants have been making some arguments here which sound like the type of privacy arguments customarily made by individuals.

I think it’s important to focus on what we have in this case.

What we have is someone who is engaged in a business operation, a business operation which the California Supreme Court has found has altered the urban — suburban landscape of California in a way that has diverted the traditional audiences that used to assemble in parks.

Now, the Court, as far back as Nebbia, has recognized that if one embarks in a business which public interest demands shall be regulated, he must know regulation will ensue.

Warren E. Burger:

Well, how much regulation — are you speaking of regulation in the sense of utilities, railroads, airlines?

Elinor Hadley Stillman:

No, regulation in the interest of promoting the public health, safety, welfare and morals.

Now —

Warren E. Burger:

Of course, in that sense, you — every — every man’s home is regulated, too.

Elinor Hadley Stillman:

But obviously, there are characteristics of a home which are different from the business operation which invites in the general public to — and — and conducts operations on such a scale that raise problems that — that are — can be expected to bring about the interest of — of state regulation.

And I would —

Warren E. Burger:

Well, from my part — from my part, Ms. Stillman, I’m — I’m interested and I know that no one can tell us the whole scope of this opinion, but I’m interested in specific points.

You heard in my question to your colleague about the large hotel lobby, maybe twice as big as — three times as big as this room, surrounded by 25, 30, 35 stores.

Is — they invite the public very anxiously, they’re anxious to have them.

Now, does this — may they pass out leaflets in the lobby of that hotel?

Elinor Hadley Stillman:

Well, to some degree, hotel lobbies are — perhaps don’t issue quite the same invitation that the — that the owner of a shopping center does.

But to the extent that the —

Warren E. Burger:

Well, do they — do they have access doors going from the lobby —

Elinor Hadley Stillman:

True.

Warren E. Burger:

— into the shop.

That’s —

Elinor Hadley Stillman:

True.

Warren E. Burger:

— some kind of an invitation for people in the lobbies who go into the shop and hotels do not limit access to the lobby to guests at the hotel.

Elinor Hadley Stillman:

Well, Your Honor, to — I — I think it would be proper if this — for the California Supreme Court if they made the kind of findings about large hotel lobbies of the kind that you’re talking about, that they made about shopping centers to have — and if they found that the State broad free speech right, which is not restricted to simply limiting government restraints, could not be effectuated.

Otherwise, I — I don’t know that it would be proper for this Court to reexamine the wisdom of — of that finding.

But I think —

William H. Rehnquist:

You — you’re here for the Government, Ms. Stillman, I take it, not on behalf of the State of California —

Elinor Hadley Stillman:

No.

William H. Rehnquist:

— but for the Federal Government —

Elinor Hadley Stillman:

Correct.

And I —

William H. Rehnquist:

— which doesn’t create property rights or (Voice Overlap) —

Elinor Hadley Stillman:

No.

Right.

And I think I would like —

Byron R. White:

What — what is — you — what is the United States’ interest by the way?

Elinor Hadley Stillman:

Mr. Chief — Mr. Justice White, the United States entered this case in large part, because one of the arguments — several of the arguments that appellants were making are so broad and so extreme in their [Laughs] implications that if they were accepted by this Court, they would put in doubt constitutionality of federal laws about which I think this Court has no doubts.

And let me —

William H. Rehnquist:

Perhaps, the Government — perhaps the Government (Voice Overlap) —

Byron R. White:

Let — let — give me one — give me one.

Elinor Hadley Stillman:

I — I can give you several, Mr. Justice White.

Byron R. White:

Well, give me — I just asked for one.

Elinor Hadley Stillman:

The civil rights statutes upheld and in part of Atlanta Motel.

Now, in — in those statutes, the right of a property owner, someone who engages in — in opening his public accommodations to the general public, he’s restricted from conditioning access on the grounds of the race of the person who desires access.

The National Labor Relations Act, in some of its applications, requires that under certain circumstances, someone who does not want persons —

Byron R. White:

But both of those you’re talking about are the exercise of the commerce power.

Elinor Hadley Stillman:

Correct.

But no — but I don’t think —

Byron R. White:

They’re not — they’re in the services for free speech.

Elinor Hadley Stillman:

That’s correct, Your Honor.

But I don’t understand that to be — we’re — we’re talking here about a state policy and — and under this Court’s decisions, it usually does not examine the — the wisdom of — of state policies.

The State has — the — the highest Supreme Court — highest State of California has —

Byron R. White:

Well, I’m just suggesting to you — I’m just suggesting to you that this case would come out either way and at the — and — and federal exercise of its power under the Commerce Clause wouldn’t be affected in the least.

Elinor Hadley Stillman:

It — it would be possible to decide this case in a way which —

Byron R. White:

No, no.

Either way, it was decided wouldn’t —

Elinor Hadley Stillman:

Yes.

Byron R. White:

— affect the Commerce Clause power.

Elinor Hadley Stillman:

Yes, but the appellants have been suggesting —

Byron R. White:

And yours — I — I take it, you’re entering the case indicates that was decided in one way, it might really drop off on the commerce power.

Elinor Hadley Stillman:

Well, some of the arguments that are — that the logic of some of the arguments that are — the appellants are making in service of their — of their claim that the State is prevented from making this kind of limitation on — on an owner’s right to restrict access would put him doubt the constitutionality of this federal —

William H. Rehnquist:

But — but the First Amendment certainly restricts the commerce power.

Elinor Hadley Stillman:

Certainly.

And the commerce power is also tested under the Taking Clause if — if there’s a complete destruction of the proper interest, which I might say we have nothing even approaching that here.

But appellants stated in their opening brief and I — and although I thought they had retreated in their reply brief, it seems to me this is still at the core of their argument.

They’re saying, at pages 11 to 12 of their opening brief, “The right to exclude is such a central element of private property, that the Government even in the name of reasonable regulation cannot diminish that right without paying compensation.”

Now, what that’s saying is that the State of California is not free to have a broad free expression policy and to effectuate that policy, because it might place one restriction on the owner’s right to condition an invitation he has extended to the general public.

Warren E. Burger:

How about in the private residence of the five-acre type that someone mentioned this morning.

Elinor Hadley Stillman:

I —

Warren E. Burger:

Can the State of California limit the owner’s right to exclude the public from that five acres or 10 or 100?

Elinor Hadley Stillman:

Your — Your Honor, I think the private residence is a totally different situation.

In the first place, there is no business operation which has extended a general invitation to the public.

In the second place, there are privacy interests involved in the private residence that just are not present here, any owner of business property who’s conducting an operation of this kind.

Warren E. Burger:

I wonder what your answer would be to the — some of the hypotheticals I put to Mr. Hammer this morning.

For example, we have now the new phenomenon of minority business enterprises.

And suppose you have a minority business enterprise or corporation made up of American Indians, Eskimos, Negroes, Mexican-Americans that cross the border and all minority groups, and they own the — the shopping centers, this shopping center, must they allow the Ku Klux Klan to come on or the American Nazi Party passing out leaflets for the master race and for the — anything that the Klan and the American Nazis believe?

Elinor Hadley Stillman:

Well, as I read the opinion of this California Supreme Court, the owner — we’re talking about the minority enterprises and their role as owners of a center that’s engaged in regulation, that’s engaged in operating a business that’s diverted the audience.

Warren E. Burger:

Content — content regulation?

Elinor Hadley Stillman:

Excuse me?

Warren E. Burger:

Content regulation?

Elinor Hadley Stillman:

I believe that they said time, place and manner and I assume that they mean time, place and the manner in the sense that that — that those terms are used in the Federal First Amendment decisions of this Court, which does not include contented regulation.

Warren E. Burger:

So if the Nazi Party wanted to put a demonstration in such that they had done in Illinois a couple of years ago —

Elinor Hadley Stillman:

I — I think a demonstration might raise significantly different problems which could be regulated.

Warren E. Burger:

Well, let’s say a very orderly demonstration.

Elinor Hadley Stillman:

Standing, but —

Warren E. Burger:

Nazis are very disciplined people.

Elinor Hadley Stillman:

Well, if they stood in the corner and simply handed out their leaflets, probably, under — I — I hate to anticipate the Supreme Court of California, but I would suggest that their use of the phrase time, place and manner would mean exactly what this Court has meant in the — in the First Amendment decisions.

And there’s no doubt that — that shopping center owners might have persons on their property who would pass out literature with views that they — that they disagree with.

But they’re certainly free to place placards up saying, “These people don’t represent our views.”

Elinor Hadley Stillman:

No — no one assumes that persons passing literature out of the Dallas Airport represent views of the Dallas Airport Authority.

And I — I think it’s unlikely that these views will be attributed to the owner.

I might also add that this Court’s decision in Eastex would — would — is relevant to this point.

It may — it — it is highly likely that the owner of the — of the enterprise in Eastex did not agree that the Texas right to work statute was a bad idea or that the federal minimum wage shouldn’t raised to $2 an hour, but that was not a reason for saying that this literature which is protected by Section 7 of the National Labor Relations Act could not be passed out by his employees on his property.

Byron R. White:

Suppose — suppose under this — under this decision, suppose — suppose there was an organization that was dead setting against having a certain product marketed in California, could — could under this decision, they — they enter this property and leaflet and picket against this particular product?

Elinor Hadley Stillman:

Yes, Your Honor.

I — I think under the Logan Valley decision, there probably was boycott great picketing on supermarket — on shopping center property in California.

I — I think that would be within the rule.

I — as I said, I think time, place and manner regulation is — is by reference to the First Amendment and we suggest that it does not exceed that the — there’s —

Byron R. White:

Yes, but none of your — none of the NLRA cases rest on First Amendment.

Elinor Hadley Stillman:

No, they don’t.

They rest under the National Labor Relations Act.

But I’m saying that the claims of the owner against that that nobody perceived any First Amendment claims of — of him against them.

If there are no more questions.

Warren E. Burger:

You have five minutes remaining, Mr. Gillam.

Max L. Gillam, Jr.:

Mr. Chief Justice, may it please the Court.

I have —

William J. Brennan, Jr.:

May I ask Mr. Gilliam.

Max L. Gillam, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Did you say something earlier that after Tanner, the California courts followed Tanner as to act — act —

Max L. Gillam, Jr.:

Yes, sir.

William J. Brennan, Jr.:

— of labor unions for any leafleting of or picketing on — on these — these premises of this kind?

Max L. Gillam, Jr.:

Yes, sir.

That was the Diamond II case.

William J. Brennan, Jr.:

Oh, yes.

And now you say that’s overruled, is it, by this case?

Max L. Gillam, Jr.:

Yes, sir.

This case overruled Diamond II, which came down after Tanner.

William J. Brennan, Jr.:

Yes.

Have any of this labor union leafleting of — or — or picketing, have they arisen since this case was decided?

Max L. Gillam, Jr.:

Yes, sir.

It’s not in the record.

I’d be happy to answer your question in this regard, because we’re intimately involved in the (Inaudible) which is an initiative process related to putting a surtax on oil companies who were above at certain size.

This decision has spawned a variety of things, some of which are public records such as opposed member —

Byron R. White:

What was the — what was the first you mentioned, Krishna?

Max L. Gillam, Jr.:

The Hare Krishna, part of whose religion is selling books.

William J. Brennan, Jr.:

Was this on a shopping center?

Max L. Gillam, Jr.:

Oh, yes, sir.

Rhode Island has a statute before its legislature now which would prohibit any business from excluding any politician who is running for office or wants to run from office as an example, any business.

Wisconsin has a proposed statute on its books.

Byron R. White:

You mean in — on the public parts of the shopping center or — or —

Max L. Gillam, Jr.:

No, just a business.

If you have a business, which is open to the public, you cannot exclude —

William J. Brennan, Jr.:

You mean by that —

Max L. Gillam, Jr.:

— any politician who wants to come in and campaign.

William J. Brennan, Jr.:

You mean by that, a retail department store?

Max L. Gillam, Jr.:

Yes, sir.

I can give the Court the cite to that, if you’d like.

William J. Brennan, Jr.:

That’s enough.

It’s still — it’s still — it hasn’t been enacted, I gather.

Max L. Gillam, Jr.:

It has not been enacted.

One State has enacted.

It was referred to in the Homart, friend of the Court brief.

This decision has wide ramifications that this Court makes as a result of these arguments.

Byron R. White:

Well, do you have any state court decisions that are — are in your favor?

Now, that — now, that —

Max L. Gillam, Jr.:

Yes, sir.

Oregon —

Byron R. White:

Now, that — now, that the decision you’re favoring in California has been overruled.

Max L. Gillam, Jr.:

Yes, sir.

Max L. Gillam, Jr.:

The Oregon court was faced with the precise same issue as the California Supreme Court and upheld the principle — we would call the principles and the reasoning of Lloyd versus Tanner.

Byron R. White:

(Voice Overlap) property-based decision or a — or a speech-based decision, based on the owner’s speech.

Max L. Gillam, Jr.:

As near as I can determine, it was a property-based decision, Your Honor.

William J. Brennan, Jr.:

Has — has there been any based on the owner’s speech?

Max L. Gillam, Jr.:

I am not aware of any.

This, as I said, we raised in the California Supreme Court, both before argument and in our petition for rehearing.

William J. Brennan, Jr.:

But they did not address to that in turn?

Max L. Gillam, Jr.:

They did not address the issue, but under the doctrines of this Court —

Byron R. White:

Are you placing — are you placing the principal reliance on your property ground here or no?

Max L. Gillam, Jr.:

Sir, I would like not to designate either of my grounds as principals I think they are both very significant and of equal importance.

Byron R. White:

And do you think your property ground is — is supported by our cases here?

Max L. Gillam, Jr.:

Yes, sir.

I think it’s supported by Lloyd versus Tanner.

Byron R. White:

You mean at the end of Lloyd —

Max L. Gillam, Jr.:

Yes, sir.

The accommodation between —

Byron R. White:

I thought that just meant that — that the shopping center was not — not the State.

Max L. Gillam, Jr.:

I’m sorry, sir?

Byron R. White:

I just thought that meant shopping center was not the State in which upon —

Max L. Gillam, Jr.:

I — it gave them — it’s — it was — its reasoning is based on the fact that in First Amendment situations, the rights to expressive activity are weighed against the rights of the property owner to make sure that no greater (Voice Overlap) —

Byron R. White:

Well, if — if the property owner owns — if the property owner isn’t the State, it hasn’t have any weighing unless there’s some legislation or something.

The property owner can just keep them up, but because the First Amendment doesn’t protect anybody against the property owner.

Max L. Gillam, Jr.:

But, Mr. —

Byron R. White:

I mean, private — against private action.

Max L. Gillam, Jr.:

Mr. Justice Powell made the point in that case.

That —

Byron R. White:

That was the Court.

The Court made it.

Max L. Gillam, Jr.:

All right.

I mean, in his opinion and the Court made it as it has made it in Babcock & Wilcox and others, that where you are advancing a particular right whether in a Commerce Clause or otherwise, to the extent that it interferes with what are thought to be property or speech rights, the Court goes through a balancing to see that it does not interfere unreasonably with it.

William H. Rehnquist:

I suppose you could say there, Live Free or Die case, that New Hampshire license (Voice Overlap) —

Max L. Gillam, Jr.:

Yes, sir.

To the extent that that made a moving billboard out of that specific state motto, the California Supreme Court would make a permanent billboard out of every shopping center for any idea.

Byron R. White:

Mr. Gillam, you wouldn’t go through any balancing operation if somebody want to come on my — on my property at home and make a speech.

And I said, “Get off!”

And he says, “Look, we got to stop and make a big balance here.

I have a very important message and you have — and — and you’re going to be away from home when I want to be here anyway.”

You know, I could just keep him off.

Potter Stewart:

Well, not if — not if the State Supreme Court had held that —

Byron R. White:

I agree with that.

Potter Stewart:

— if he’s simple — if he’s simple in our State, means it’s qualified by your obligation to let anybody come on your lawn and make a speech.

Byron R. White:

I — I was including that.

I was asked in including that and that wasn’t in — in our case.

Our case just simply said that that shopping center didn’t happen to be the State.

In which event, it was just an ordinary — an ordinary homeowner or property owner keeping somebody off that he didn’t want to let on.

Max L. Gillam, Jr.:

That is correct, but it also adopted the principles which you’ve used in your NLRA cases with respect to reasonable, available, adequate alternatives.

I would like to close with just one point, if it please the Court.

Warren E. Burger:

Nobody has mentioned the captive audience aspect so far as I recall anywhere here.

People going to a supermarket or going out to by groceries and meat and whatnot, are they, in your view, something of a captive audience?

Max L. Gillam, Jr.:

They are a captive audience only to the extent that they go to shopping centers which are deemed desirable by the person engaged in — in particular form of expressive activity.

If I have a center that is attractive and draws large number of people, there’s no question in my mind that extensive, expressive activity on that shopping center may drive away business.

However, it’s a free choice as it sits now in the record in this case.

There were stipulations with respect to the nine largest shopping centers in Santa Clara County, appears on page 6 and 7 of the record.

The first item of business was a stipulation that out of the largest nine shopping centers in Santa Clara County, one was forbidden by local ordinance from permitting the expressive activity, four permitted it, four did not.

The stipulation went on that the plaintiffs had conducted a survey of Santa Clara County.

Some centers permitted expressive activity, some did not, some of those who did permit it, did it subject to reasonable regulation.

It’s in the face of that that the California Supreme Court’s assumption is so egregious, implicit, in that opinion is the assumption that expressive activity is barred from all shopping centers.

That’s why that fact is so significant which we contend makes this a very narrow case, the existence at great length of the adequate available alternative.

Thank you.

Warren E. Burger:

Your time has expired now, Mr. Gilliam.

Warren E. Burger:

Thank you, counsel.

The case is submitted.

And we’ll hear arguments —