The Right to Shout 'Boycott' in a Crowded Shopping Mall

Jacob Sullum | December 28, 2007

This week the California Supreme Court ruled that the state constitution requires a private shopping mall to allow demonstrations urging customers to boycott its tenants. The case stemmed from a labor dispute that led 30 to 40 members of the Graphic Communications International Union to distribute leaflets in front of the Robinsons-May department store at San Diego's Fashion Valley Mall in 1998. The leaflets laid out the union's complaints about The San Diego Union-Tribune's treatment of its employees and asked people not to shop at Robinsons-May, a major advertiser in the paper. The mall stopped the leafletting, noting that the union had not applied for a permit and in any event was violating the mall's rule against "impeding, competing or interfering with the business of one or more of the stores or merchants in the shopping center by...urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center."

By declaring that the mall has no right to enforce that rule, the California Supreme Court extended a line of cases in which it has held that people have a constitutional right to freedom of speech on other people's property. The U.S. Supreme Court at one time dallied with that notion but has since repudiated it, so the California Supreme Court now bases its position on the state constitution's free speech guarantee, rather than the First Amendment. As Justice Ming W. Chin noted in dissenting from this week's decision, California is virtually alone in holding that the constitutional right to freedom of speech applies to private parties as well as the government. With the exception of New Jersey, all the other states, including those with free speech guarantees essentially the same as California's, either have never taken this approach or have renounced it.

There's a good reason for that. Freedom of speech depends on property rights. If you are forbidden from buying, renting, or borrowing the means to get your message out, whether it's a printing press, a meeting room, TV time, or a computer with an Internet connection, your right to speak your mind does not amount to much. By the same token, property rights help define the limits of the right to free speech. I don't have a right to hold a rally in your living room or write an article on your computer (or cry "fire" in your theater) without your permission. Once freedom of speech is divorced from property rights, courts have to weigh the importance of the speech against the interests of the property owner on a case-by-case basis, which leads to arbitrary and unpredictable results. Meanwhile, by undermining property rights, courts ultimately make freedom of speech less secure.

A PDF of the decision is available here.

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Dave W.|12.28.07 @ 1:12PM|#

In the olden days free speech depended on having a commons where the speakers could speak and pass out their pamphlets.

yesterday we were discussing the Joe Horn case on one of yr thds Mr. Sullum. I noted that Pasadena, TX has now passed a law that ppl can't picket in front of private residences, in response to the picketing in front of Horn's residence.

Should the opportunity to excercise free speech rights shrink with the shrinking commons? Is that good for America? What would the people who wrote the first amendment have said about this modern issue?

ed|12.28.07 @ 1:19PM|#

Freedom of speech means freedom from interference, suppression or punitive action by the government-and nothing else. It does not mean the right to demand the financial support or the material means to express your views at the expense of other men who may not wish to support you. Freedom of speech includes the freedom not to agree, not to listen and not to support one's own antagonists. A "right" does not include the material implementation of that right by other men; it includes only the freedom to earn that implementation by one's own effort. Private citizens cannot use physical force or coercion; they cannot censor or suppress anyone's views or publications. Only the government can do so. And censorship is a concept that pertains only to governmental action.
"The Fascist New Frontier," The Ayn Rand Column, 106.

|12.28.07 @ 1:22PM|#

Okay.........this is an EASY fix. Private property owners can do what the government does, i.e. set up "Free Speech Zones." In the case of the mall, may I suggest that parking space in the corner of the lot out by the highway?

(just kidding, but if my irony meter was still working, it would be pegged with this one)

R C Dean|12.28.07 @ 1:26PM|#

Should the opportunity to excercise free speech rights shrink with the shrinking commons?

Am I the only one who finds it ironic to complain about the shrinking commons on an internet site?

What would the people who wrote the first amendment have said about this modern issue?

No person shall have their right to property or free association infringed by another person's exercise of their right to free speech.

|12.28.07 @ 1:28PM|#

I don't have a right to hold a rally in your living room

Uh, Jacob, I guess we should have told you about the "Rudy Giuliani for President" demonstration at your place next Monday.

;)

|12.28.07 @ 1:31PM|#

Am I the only one who finds it ironic to complain about the shrinking commons on an internet site?

You are...the rest of us find it idiotic.

anon|12.28.07 @ 1:37PM|#

Some californians should go to these judges front lawn and picket. See how they like the private property rights then.

Dog Bites Man|12.28.07 @ 1:37PM|#

CA SC rules against private property rights?

|12.28.07 @ 1:43PM|#

What would the people who wrote the first amendment have said about this modern issue?

They might have said something like "Go back to Civics Class; the First Amendment doesn't 'give' you the right to free speech."

I hope you didn't go to college; you need your money back.

Dave W.|12.28.07 @ 1:43PM|#

Am I the only one who finds it ironic to complain about the shrinking commons on an internet site?

Oh, the Internet is just fine for me personally. I am here to: (i) learn from you; (ii) teach T.; and (iii) bug the heck outta VemSter. (not necessarily in that order) So, for me, the Internet works, as long as Jon Hanky isn't running the show.

On the other hand, I am no monomaniac. I realize there are different people out there with different needs. The Internet is no place to point out the (supposed) injustice of what the Tribune did and call for a boycott. That kind of speech would require a commons, and not just a virtual one.

I honestly think that the Founding Fathers would have thought with more nuance about the problem of the disapperaing commons than you and Mr. Sullum do.

|12.28.07 @ 1:45PM|#

IIRC, had a similar law proposed in Hawaii recently, where labor unions would be allowed to go onto your lawn on your private property and picket right outside your house. Virtually all the Democrats approved it because they were pwned by the labor unions, and it took a veto to put a stop to this nonsense.

|12.28.07 @ 1:48PM|#

...the mall's rule against "impeding, competing or interfering with the business of one or more of the stores or merchants in the shopping center by...urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center."

This seems to also disallow advertisements that encourage customers to buy their widgets at Store X because they're cheaper than Store Y.

Dave W.

The protesters have every right to promote whatever boycott they want. However, they have no right to access private property belonging to someone else. Free speech is not the issue. Trespass is the issue.

Dave W.|12.28.07 @ 1:50PM|#

Look, let me draw an analogy that you gunnuts can understand:

the 2d amendment contemplates arms being beared by well-regulated militias. However, if the whole phenomenom of well-regulated militias disappears, then does that mean no one should have the right to bear arms? No, of course not. We do our best to re-cast the right in a fair way in a modern context, keeping the original objectives of the drafters in mind in doing so.

similarly, the drafters of the first amendment contemplated free speech on the commons. If the commons disappears then does that mean only property owners should have the right to free speech? No, of course not.We do our best to re-cast the right in a fair way in a modern context, keeping the original objectives of the drafters in mind in doing so.

as far as the Internet argument, you can bear arms in the context of the game Halo 3. If we limit your right to bear arms to computer games like this, would that be good enough under the Second Amendment?

anon.|12.28.07 @ 1:50PM|#

"The Internet is no place to point out the (supposed) injustice of what the Tribune did and call for a boycott. That kind of speech would require a commons, and not just a virtual one."

Require a commons? Really? How do you explain websites like www.walmartwatch.com, www.smithfieldjustice.com, or www.eyeonwackenhut.com. Did they not get the memo?

Dave W.|12.28.07 @ 1:53PM|#

How do you explain websites

I wouldn't know. My employer and my public library block'em.

Jerry|12.28.07 @ 1:58PM|#

Great article title.

R C Dean|12.28.07 @ 2:00PM|#

the 2d amendment contemplates arms being beared by well-regulated militias.

Ur, no. The 2A contemplates the people having the right to bear arms.

We do our best to re-cast the right in a fair way in a modern context, keeping the original objectives of the drafters in mind in doing so.

The 2A needs no recasting, because it was never limited to guaranteeing any kind of collective or contingent right. The right of the people is the right of the people, whether in 1787 or 2007.

If we limit your right to bear arms to computer games like this, would that be good enough under the Second Amendment?

There is no difference between speech published on the internet and speech published in a paper. Its exactly the same words.

There is a significant difference between shooting someone in a video game and shooting them on the street.

Dave W.|12.28.07 @ 2:00PM|#

However, they have no right to access private property belonging to someone else.

Unless the someone else is engaged in interstate commerce. Then we got a big fat hook if we wanna use it. Let's check the wiki on Robinson's May:

http://en.wikipedia.org/wiki/Robinsons-May

(that's gotta hurt)

Dave W.|12.28.07 @ 2:03PM|#

The 2A needs no recasting, because it was never limited to guaranteeing any kind of collective or contingent right. The right of the people is the right of the people, whether in 1787 or 2007.

The second Amendment says that the ppl need to have the right to bear arms because well-regulated militias are needed. The logical contrapositive of that is that if well-regulated militias are not needed, then the people do not need to bear arms.

Fortunately it is a Constitution we are expounding and that gives us some wiggle room to be commonsensical and not overly Randian.

|12.28.07 @ 2:09PM|#

the drafters of the first amendment contemplated free speech on the commons.

The drafters of the First Amendment were making it explicitly clear what Congress cannot do. Stop reading minds or provide a link.

Also, they way I read the Second Amendment, the Founders were saying "Because militias that are subject to civilian authority (well-regulated) are necessary, people need to have their weapons in case we have to form one of these militias again"

|12.28.07 @ 2:11PM|#

"The second Amendment says that the ppl need to have the right to bear arms because well-regulated militias are needed."

Egad, not this again. The structure of the sentence does not imply the contrapositive because the militia part is a dependent clause. It is A reason but not THE ONLY reason. A

Do you really want to get in the business of applying contrapostives as limitations of other rights, or do you just do that selectively to the ones you don't like?

|12.28.07 @ 2:12PM|#

The logical contrapositive of that is that if well-regulated militias are not needed, then the people do not need to bear arms.

Well, Dave, until the Prince of Peace comes and we all sing kumbayah and beat our guns into plowshares, can you think of a time and place that "duly constituted" (well-regulated) militias are NOT needed?

Rimfax|12.28.07 @ 2:13PM|#

Dave W. spat forth:

Look, let me draw an analogy that you gunnuts can understand:

Congratulations. For your exceptional skills at being a patronizing asshole, you have just earned the right to be ignored. If you feel that your speech rights have been infringed, feel free to take it up with the California Supreme Court or you can picket on the sidewalk in front of my house.

|12.28.07 @ 2:14PM|#

dammit, and JasonL beats me to the other point: the "well-regulated militia" clause is a justification, a pretty relevant one considering how America (had just) gained its independence in the first place.

ed|12.28.07 @ 2:17PM|#

Give Dave W. some credit. He penned this little gem: "arms being beared." Tee hee hee.

|12.28.07 @ 2:18PM|#

Hey Dave W.

Can I have your address? I want to tell you in person why a property owner should be able to kick someone off of his property. I want to do it in person, in your home. You can't kick me out, because you would be violating my right to free speech.

Since I am sure you have bought products that come from other states, you are entangled in interstate commerce.

|12.28.07 @ 2:19PM|#

Dave W,

Once again you are out in la-la land.

The freedom of speech and the freedom of the press guaranteed by the first ammendment is essentially a stricture preventing the government from telling people what was permissible to print or to say - a backlash against certain British laws against 'sedition'.

The bizarre notion that the people writing the Constitution assumed that a commons would be required for people to exercise this speech is utterly comical.

Its purpose was to prevent laws such as a hypothetical law that would make it a felony to question the solvency of banks.

Of course, governments routinely violate these restrictions on their power, and lawyers write voluminous flowery and turgid rationalizations that explain why these violations are not actually violations.

Rimfax|12.28.07 @ 2:21PM|#

Here's some commons for you, Dave W. (Just in case I forget why I ignore you.)

VM|12.28.07 @ 2:26PM|#

Rim-

heh :)

to whoever wrote about joe:
IIRC joe has never claimed graduating from Georgetown - I think he went to grad school at GW

and URKOBOLD is not a clown. URKOBOLD is the feared, beloved Troll Primeval.

anon.|12.28.07 @ 2:31PM|#

"The second Amendment says that the ppl need to have the right to bear arms because well-regulated militias are needed. The logical contrapositive of that is that if well-regulated militias are not needed, then the people do not need to bear arms."

I think you misunderstand the historical meaning of "well-regulated milita" but, in any event, that's only the logical contrapositive if the maintenance of a well-regulated militia were the only reason people need to keep and bear arms. Merely being the only one enumerated in the preamble does not make it so.

Besides that, the Second Amendment does not begin with "As long as . . . ." It does not state a contingency upon which the right to keep and bear arms rests. Instead, the preamble recognizes a universal and timeless truth, that facing the threat of tyranny unarmed is a mistake a free people get to make only once. That is as true today as it was in 1791.

[Now that I've finished typing this, I see that others have already made my points just as well. In the hope of adding some extra value, I challenge Dave W. to cite a single source, contemporaneous with the ratification of the Second Amendment, that characterizes the right to keep and bear arms as conditioned on the continued utility of "militias" (in the ahistorical sense that Dave W. uses the term).

Timothy|12.28.07 @ 2:33PM|#

Dear Everyone Who Isn't Dave,

Seriously, stop. Just stop. Dave has a problem, a mental problem, and you'll never get through to him. So quit, he's a very talented troll, only fire and acid can damage him. The boy's not quite right, best leave him be.

Heinrick|12.28.07 @ 2:35PM|#

Is there not a difference between my living room (where the public is not allowed) and a shopping mall (where the public is allowed)?

Brian Sorgatz|12.28.07 @ 2:36PM|#

The federal civil rights acts of the 1960s are controversial but perhaps justifiable for their broad but sensible limits on property rights. Just saying.

Self-interest disclosure: I plan to exploit this ruling here in my home state by getting a sweater printed with COMPULSORY HIGH SCHOOL IS SLAVERY on the front and STAY IN HIGH SCHOOL. MISERY LOVES COMPANY. on the back. To anyone of any age at the mall who expresses any sincere approval of it, I'll offer a free, no-obligation copy of The Teenage Liberation Handbook by Grace Llewellyn.

And no, I don't plan to pick up any underage females (playboy's honor). As a matter of commercial good will, I'll buy stuff frequently while I'm there, too.

Fuck you, Adbusters hypocrites! This is consumerism as philanthropy!

|12.28.07 @ 2:38PM|#

I do think it's strange that people think of the Internet (particularly here) as a commons; the proprietors (Reason Foundation) let us in here to heckle each other at their discretion.

Seems to be working pretty well.

Heinrick,

No.

thoreau|12.28.07 @ 2:39PM|#

Guys, just because Dave W. wants to talk about the 2nd amendment doesn't mean everybody else is obligated to do so.

Anyway, I largely agree with Jacob here, but let's explore the limits of this:

Malls often have 2 stores in similar market niches operating in the same mall. Presumably the mall has already worked things out in the contracts with the stores so that both stores can advertise their wares but neither store can have employees camp out in front of the rival and hand out fliers.

What if somebody was urging a boycott of Store X, and competing Store Y decided to hire the activists to hand out fliers on mall property? Assume that the activists stay within whatever zone is permitted for advertising?

Now, if the contract between the mall owner and the various stores explicitly prohibits that sort of activity then we can all agree that the contract should be enforced on private property, yadda yadda yadda. But if the contract is silent on that matter, then presumably we'd agree that no court should stop the activists from collaborating with a store owner to urge a boycott of a rival.

Of course, it's more of a property and contract issue then, not a 1st amendment issue: The owner of store Y should be able to do whatever he wants in the space that he's renting, unless that activity is disallowed in the rental contract.

Brian Sorgatz|12.28.07 @ 2:40PM|#

Seems to be working pretty well.

Yes. I know I'm getting my obnoxious jollies here today.

Episiarch|12.28.07 @ 2:41PM|#

Dave just wants to be able to go protest HFCS on Pepsi's property.

Fluffy|12.28.07 @ 2:44PM|#

Dave W -

By what possible ratiocination can you argue that there is no commons in the modern US?

Please note that I'm not accepting your argument that free speech requires us to force a commons into existence by declaring ONE PERSON'S property to be the commons. I'm just trying to understand the empirical side of your argument.

The public space in the US has never been larger. The sheer amount of physical ground covered by public roads, public facilities, public parks, public schools, public universities, etc. has never been larger.

The plaintiffs here are just angry that the particular set of shoppers they wanted to harass didn't happen to be on any of those immense common areas in a way that made it convenient for them to leaflet them. Because one set of persons has withdrawn from the commons DELIBERATELY, the plaintiffs wanted free reign to violate someone else's property rights to pursue those potential listeners.

Because these people chose to do their shopping in a private space, the union was angry. Well fuck them up the ass with a chain saw. Stand on the public sidewalk outside the mall and hand out your leaflets if you want. If people speed by you in their cars and don't take your leaflets, I guess they don't want to talk to you.

|12.28.07 @ 2:46PM|#

The federal civil rights acts of the 1960s are controversial but perhaps justifiable for their broad but sensible limits on property rights. Just saying.

I strongly disagree for a whole host of reasons, the first being I didn't find anything sensible about said limits, especially in light of all the Title VII Sexual "Harassment" suits that came about that led to men being too afraid to date women at work.

|12.28.07 @ 2:50PM|#

Assume that the activists stay within whatever zone is permitted for advertising?

Thoreau, generally speaking, the areas that are not immediately within the stores themselves are administered to by the mall. That is, there is a Westfield-Whateverthehell-Mall Co. that administers the places in between. Additionally, since the corps. are renting the space from Westfield, the Mall itself sets the rules.

What if somebody was urging a boycott of Store X, and competing Store Y decided to hire the activists to hand out fliers on mall property?

Shorter Answer to this: Westfield Co tells Store Y to knock it the hell off or face expulsion from the mall's grounds.

thoreau|12.28.07 @ 2:56PM|#

Ayn Randian-

Makes sense. I guess that, in practice, the only space available for handing out those fliers bashing a rival would be in the store itself, then, and they'd rather focus their energy on getting people inside the store to make a purchase.

So I guess it's a moot issue.

|12.28.07 @ 2:56PM|#

This seems to also disallow advertisements that encourage customers to buy their widgets at Store X because they're cheaper than Store Y.

Sure does....that must be why mall stores advertise in the paper or on TV or on the radio....

|12.28.07 @ 2:58PM|#

Ahh, wise words Timothy. I was starting to wonder how a supposed member of the bar knew so little about the Constitution.

Brian Sorgatz|12.28.07 @ 2:59PM|#

Sure does....that must be why mall stores advertise in the paper or on TV or on the radio....

Point of Hobbesian logic: Wouldn't competitors within malls want to do what nuclear-armed submarines always wish to do, for the same psychological reasons? Wouldn't they agree to some polite distance between their "weapons" (i.e. ads) at all times, because they have no pragmatic choice in that?

Dave W.|12.28.07 @ 3:05PM|#

does not imply the contrapositive

actually when I was eating lunch, I realized "contrapositive" was not the correct term. If 2A is diagrammed logically with:

p = we need militias; and
q = right to bear arms shall not be infringed; and
2A = if p then q

As history has played out however, (not)p is true. Logically, 2A comes to mean:

if (not)p then [q or (not)q)]

I forget if this is the inverse or the converse, but it is not the contrapositive. Nevertheless, the result of the logical analysis is the same -- under a strictly logical analysis, militias not needed means no guarantee of right.

But, like I said before, I don't believe 2A should be analyzed in this wooden literalist way. I think we should still consider that 2A guarantees a right to bear arms even if it is admitted that militias aren't necessary. Hopefully, this is one point that me and the other plain old gun rights supporters can agree with the gunnuts.

But, like T. says: this thd isn't about 2A. this analogy is just to make the point that sometimes society changes to such an extent that you have to change the way basic rights are safeguarded. With 2A it means we fudge on the literalist exegis a bit. With 1A, I am not sure what it means, or should mean, but I do think that the Founders thought that a meaningful right to free speech was more important than the right to property. That is why they made they made 1A first and 5A fifth, after all!

Also, yesterday somebody asked me about whether I thought the Tenth Amendment was important. It is nice to see California flexing its 10A rights here. Don't tell me that the Tenth has been thrown out the winders!

|12.28.07 @ 3:06PM|#

If you choose to make your property open to the public (and there is no requirement that you do so), then you also owe certain duties to those members of the public who use your property. For example, if you negligently create or allow safety hazards, and someone is hurt, they can sue.

Also, if you open your property to the general public, there are legal restrictions on your right to restrict the public use of the property. For example, you cannot legally exclude people on the basis of race. And you have to make it accessible to people in wheelchairs. Those are examples of restrictions on the right of the property owner to control access and use of property that is open to the public.

Another restriction applies only to shopping malls. Because in many areas shopping malls have replaced downtown as the main attraction, and because the downtown business district is the traditional forum for getting up on your soap box, passing out flyers, and so on, California law requires that when your property is socially equivalent to a downtown retail district, you can't restrict speech on the basis of content.

It is certainly an arguable whether this is wise, but it is not an inherently unreasonable proposition.

VM|12.28.07 @ 3:09PM|#

okay. that was a heepin' honkin' lot of text from dickwad that I unfiltered. Man, that troll is a diabetic club foot that's just about to rot off.

And it nearly made me miss Mr Premo's post, which is interesting!

|12.28.07 @ 3:11PM|#

Why I'm doing this I don't know. I know, Timothy, I know!

Dave, your analysis of the sentence is flawed from the word 'go' so everything else you wrote is flawed. You need to understand the difference between "If A then B" and "B if and only if A" (IFF).

|12.28.07 @ 3:12PM|#

Living room?

You can't bring yourself to report honestly enough on the question to even acknowledge the actual reasoning, which is based on the concept of "place of public accommodation," even to denounce it?

Weak.

I guess this comes down to whether you think of free speech just as a negative right, or whether you agree with the Founding Fathers that it is a positive good, and a necessity for a free society, for there to be a vigorous and open exchange of ideas.

Dave W.|12.28.07 @ 3:14PM|#

your analysis of the sentence is flawed

I don't know if you caught my 3.05 pm post, but I got it right on that one.

Dave W.|12.28.07 @ 3:15PM|#

Oh, yeah. Am I really a leftist? I was intrigued by that.

|12.28.07 @ 3:18PM|#

Dave, you are a tool. You've been thoroughly refuted...learn to read or go away.

California law requires that when your property is socially equivalent to a downtown retail district, you can't restrict speech on the basis of content.

A downtown retail district assumes that there are public roads and sidewalks, which is not the case in re: a mall.

I wonder if part of the reason for malls popping up all of the sudden was that the retail districts were too "rabbly" for people to do their shopping in the first place. In that case, what comes after malls?

I do think that the Founders thought that a meaningful right to free speech was more important than the right to property.

Yeah, no they didn't. I'll note that your continued ridiculous blather is being allowed on private property.

R C Dean|12.28.07 @ 3:22PM|#

I do think that the Founders thought that a meaningful right to free speech was more important than the right to property.

Jeebus H. Cricket on a pogo stick. The Founders said the state can't restrict free speech. That is perfectly consistent with no rights to speech on other peoples property at all.

|12.28.07 @ 3:23PM|#

I guess this comes down to whether you think of free speech just as a negative right, or whether you agree with the Founding Fathers that it is a positive good, and a necessity for a free society, for there to be a vigorous and open exchange of ideas.

No one ever said anything was stopping the vigorous and open exchange of ideas. What's stopping us from doing just that right here? If Reason stopped the comments section, I would almost never come here.

So, "free and vigorous exchange" ----> more hits ----> more ad revenues (+ increased subscriptions).

Do you think that some people might have a financial motive for the open exchange of ideas? Have you ever been to college?

Imagine if bars had a "no arguments" rule...Christ.

VM|12.28.07 @ 3:23PM|#

AR:

NOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!!!!!!!!

must. stop. feeding.

robc|12.28.07 @ 3:26PM|#

I don't know if you caught my 3.05 pm post, but I got it right on that one.

Nope.

We want the statement if p then q to be true. However, p is an independent variable we (as founding fathers) dont control while q is completely under our control.

Thus there are 4 possibilities (truth tree coming up):

p | q | p->q
____________
T | T | T
T | F | F
F | T | T
F | F | T

Thus if we make q always true, the statement as a whole will always be true. Thus we shall write "the rights of the people shall not be infringed" and never have to worry about the silly independent variable again. This also has the advantage of q needing to be true in the case of r or s, even if p isnt true. Since we cant see the future and dont know what r or s are, we shall just make it clear the q is absolute.

|12.28.07 @ 3:27PM|#

Put it to you another way, joe.

If the Founders thought that free speech needed to have places carved out for it, they could have directed that Congress provide said places.

Why didn't they do that then?

robc|12.28.07 @ 3:27PM|#

VM,

sorry about feeding the troll, but I cant pass up a chance to ascii art a truth table, even if I called it a truth tree.

Dave W.|12.28.07 @ 3:32PM|#

That is perfectly consistent with no rights to speech on other peoples property at all.

Business invitees saying things on your property is perfectly consistent with you continuing to own the property, too. You still control the access to your property. You control whether the public at large is invited onto your property. The only thing California is denying is the right of the landowner to control what people say or don't say when the landowner has decided to open up access.

Dave W.|12.28.07 @ 3:34PM|#

Yup. What I said in my 3.05 is the same as the last row of your fancy-schmancy table.

|12.28.07 @ 3:36PM|#

my fault, VM. I forgot what a regular troll looks like after dealing with He-Who-Shall-Not-Be -Named.

Paul|12.28.07 @ 3:38PM|#

As Justice Ming W. Chin noted in dissenting from this week's decision, California is virtually alone in holding that the constitutional right to freedom of speech applies to private parties as well as the government.

Oh boy, I hope that Californians realize that this can rub the supporters of such a scheme exactly the wrong way.

I think we may have just found a new launching point for libertarian ideas. And there's a sign on the door that says "No Tresspassing". We're not, we're just speaking.

VM|12.28.07 @ 3:41PM|#

AR:

no worries, bro!

just watch out for your french pirate marine journalist engineers!

and korn syrup boi - up yours.

Paul|12.28.07 @ 3:44PM|#

Should the opportunity to excercise free speech rights shrink with the shrinking commons?

What shrinking commons?

|12.28.07 @ 3:46PM|#

Ayn Randian,

If the Founders thought that free speech needed to have places carved out for it, they could have directed that Congress provide said places.

Why didn't they do that then?

Because in the world they lived in, and in every other society that had ever existed, there was an agora, a public meetingplace where people going about their business would encounter each other and have an open forum for the exchange of ideas, which they would experience frequently as they went about their daily business.

They never dreamed that the agora would be a private place, and people so going about their business "downtown" would have their speech restricted there.

|12.28.07 @ 3:47PM|#

All Reasonoids should be aware of the story behind "shouting fire in a crowded theater."
Seems the accused were doing nothing of the sort, yet the US Supreme Court found them guilty anyway.
Is this a great country or what?

Paul|12.28.07 @ 3:49PM|#

This seems to also disallow advertisements that encourage customers to buy their widgets at Store X because they're cheaper than Store Y.

De Stijl, of course it is. You do know how shopping malls operate, don't you?

Shopping malls want all of their tennants to survive and prosper, they don't want their tenants putting eachother out of business. There are all manner of rules regarding proximity of 'like' stores, advertising, etc.

Ok, when a man and a woman love eachother verrrry much...

robc|12.28.07 @ 3:50PM|#

What I said in my 3.05 is the same as the last row of your fancy-schmancy table.

And that is why your 3:05 post is wrong. You left out row #3. THE MOST IMPORTANT ROW OF THEM ALL.

|12.28.07 @ 3:52PM|#

just watch out for your french pirate marine journalist engineers!

I am not sure whether to laugh or be sad when I think about the fact that I know
1. Exactly who are talking about
2. That I can name about ten of his names off of the top of my head and
3. I could type his blog address from memory, even though I never went there.

We're not, we're just speaking.

oh noes...I sure hope Anarchrist doesn't hear about this...he'll go around from shopper to shopper screaming "Bullshit!" in their faces.

Dave W.|12.28.07 @ 3:54PM|#

And that is why your 3:05 post is wrong. You left out row #3.

what part of [q or (not)q] don't you understand?

Rimfax|12.28.07 @ 4:00PM|#

VM,

I fixed joe's entry with a couple of links to what he has said about himself.

Regarding Urkobold™, I will bow to the wisdom of those brave enough to edit his entry.

|12.28.07 @ 4:00PM|#

people so going about their business "downtown" would have their speech restricted there.

joe, have you never actually been to Times Square or something?

Also, downtowns in cities across the land still exist and thrive, no matter what you've heard. And last time I checked, they still entail public roads and sidewalks.

They never dreamed that the agora would be a private place

Well, guess you better get cracking on a Constitutional Amendment then (even though I don't believe a lick of your theory, in that involves you divining what the Founders were thinking).

Sorry, joe, I'm just not buying it. If you say that the Founders were so enamored with the agora, they were smart guys, they should have written it down; I am sure they never dreamed of a world without guns either, but they felt the need to throw that in there.

And besides, what Paul said: what shrinking commons?

The very fact that we're arguing on this here privately-owned forum flies in the face of what you're saying joe. The existence of colleges sort of counteracts you too (although the speech codes aren't helping).

robc|12.28.07 @ 4:01PM|#

Dave W,

Fair enough, and that in conjunction with #1 is why q must be true. Since we dont know the value of p(in fact, I would argue that p is true), we MSUT hold q to be true to guanantee p->q. Also dont forget we need r->q and s->q to be true also.

robc|12.28.07 @ 4:05PM|#

Dave W,

Before you ask where r and s are mentioned in the constitution, I will answer that they are specifically mentioned in Amendment 9.

|12.28.07 @ 4:07PM|#

WTF, set theory. I won't be impressed until you nerds can use DeMorgan's law to make a point about the 2nd amendment.

Dave W.|12.28.07 @ 4:20PM|#

robc,

The way I hear you arguing is that the Founding Fathers meant to imply other, unwritten conditions precedent, to be used in place of "militias are needed." I agree with that, but only because it is a Constitution we are expounding. In normally statutory drafting if you mean if (p or r or s) then q, then you have to actually say if (p or r or s) then q.

on a slightly different point [q or not(q)] does not mean that the right to bear arms will necessarily be infringed. Rather, it would mean that it may or may not be infringed at the pleasure of the government. That seems to be the crux of your confusion. Fortunately, I think we still agree on the larger, more important point that this is not the correct way to interpret the Bill Of Rights.

|12.28.07 @ 4:20PM|#

How much do you want to bet that all the supporters of this ruling would be aghast if a similar ruling came down, only it was in reference to the Second Amendment rather than the first?

Certainly the Founders envisioned that the populace have weapons, even to the point of "free and voluntary" exchange thereof, but there seem to be no shortage of private property owners banning weapons.

Can CA malls throw out the schizos who ramble on, or is that subsumed in the concept of "freedom of speech"?

Dave W.|12.28.07 @ 4:22PM|#

No, 9a only applies to types of rights not mentioned in BOR. The right to bear arms is not one of these because it is mentioned. Ergo, 9A does not apply to the right to bear arms.

Paul|12.28.07 @ 4:23PM|#

Ayn_Randian,

I say again, this ruling has broad implications for all kinds of people utilize property to get their messages out. This could turn out very interesting indeed.

Paul|12.28.07 @ 4:24PM|#

Oh, this also means that schools have to give time and facilities to...you know, Christian groups and the like, right?

Dave W.|12.28.07 @ 4:26PM|#

How much do you want to bet that all the supporters of this ruling would be aghast if a similar ruling came down, only it was in reference to the Second Amendment rather than the first?

Interesting hypothetical. If you were judge, how would you rule, Ayn_Randian?

Dave W. Correction|12.28.07 @ 4:27PM|#

"to be used in place of "

should have been:

--to be used disjunctively with--

|12.28.07 @ 4:29PM|#

grrr - once again, with emphasis, the Second Amendment doesn't "grant" the right to bear arms, it says that the right to bear arms shall not be infringed. SHALL NOT...basically, the Founders had some foresight and said "Hey, you, liberal congressman, don't even think about it".

I say again, this ruling has broad implications for all kinds of people utilize property to get their messages out. This could turn out very interesting indeed.

I realized that academically, but it can be fun to come up with all kinds of crazy examples that this ruling entirely justifies, as in, where does it end? Can entire rallies be scheduled at CA malls, with the mall-owners expected to foot the bill for the restrooms and the cleanup?

Yikes.

|12.28.07 @ 4:30PM|#

This is not based on the Constitution, but the California State Constituion. Which is why other states aren't following these lines of opnion... because they have different state constitutions.
Whatever the merits of the case or ruling are, it aint based on the First Amendment.
That gets briefly acknowlged in the post, but then quickly ignored. However, it's a key reason why California views free speech at malls differently.
Also, any talk about what the founding fathers meant is irrelevant, unless you're talking about the folks at the California constiutional convention in 1850 (or whenever that right was added to the California constitution).
Also, there is no way for the US Supreme Court to overturn this ruling, since, it is the State Supreme Court ruling on a State constiutional issue (not the US constitution).

robc|12.28.07 @ 4:30PM|#

Dave W,

If 2A is a limited right that only exists in the presence of p, then, the right to bear arms in general or in other limited cases is not mentioned in the BOR and therefore can be a part of 9A.

Back to your q or not q. I get what you are saying, it is just wrong. Not q can never exist because of line #2. Therefore q must be absolute because it is the only value of q that guarantees truth regardless of the value of p.

However, that is a stupid argument anyway, 2A says "A well regulated militia, being necessary to the security of a free state" - Thus p must be true. It is NECESSARY to the security of a free state, thus it cant be false. Thus, line #1 and #2 are the only that matter and q must therefore be true.

Dave W.|12.28.07 @ 4:31PM|#

So you would rule against the gun owner?

robc|12.28.07 @ 4:32PM|#

|12.28.07 @ 4:33PM|#

f you were judge, how would you rule, Ayn_Randian?

I would rule against forcing private property owners to allow guns, while simultaneously encouraging them to allow their customers to pack heat.

Meanwhile, back at the ranch, I would also encourage legislatures to repeal the "special status" carved out for off-duty officers. Either everyone gets to pack heat or no one does.

|12.28.07 @ 4:35PM|#

This decision is not about the first amendment or the founding fathers. Although the U.S. constitution contains some restrictions on what states may do, the founding fathers chose to prohibit congress, but not the states, from interfering with freedom of speech.

The first amendment became binding on the states through a very broad interpretation of the 14th amendment's requirement that the states not deprive people of due process of law. Free speech was seen as so essential to the concept of liberty that state restrictions on speech are considered violations of the due process clause of the 14th amendment. (Although I like the result, I have some problems with that logic.)

But this is not an application of the federal constitution at all. This is an example of federalism. Different states may do things differently. State constitions frequently include some guarantee of free speech, and each state constitution may be interpreted differently. That is a good thing. Too many states defer to the US Supreme Court on the interpretation of their own constitutions.

As one who supports federalism, I like the fact that the California Supreme Court does not rely on federal interpretations of federal law in deciding how to interpret the state constitution.

robc|12.28.07 @ 4:35PM|#

AR,

Interesting questions on packing on private property. If I am carrying concealed in your home, am a carrying on your property or on my person?

Paul|12.28.07 @ 4:36PM|#

Can entire rallies be scheduled at CA malls, with the mall-owners expected to foot the bill for the restrooms and the cleanup?

As I see it... yes.

So, why don't the H&R regulars start getting a Ron Paul/1st amendment/2nd amendment rights rally together. I think there's probably a Whole Foods(tm) supermarket that would make a Jim Dandy location.

robc|12.28.07 @ 4:38PM|#

Steve Premo,

You are right, this isnt a 1st amendment issue. Its a 5th amendment (thru broad interpretation of the 14th) issue. Is the state of CA taking private property rights from the mall owners?

Without the 14th, it would be up to the state to rule. With the expansive 14th, the state of CA is violating the 5th amendment with this ruling.

Paul|12.28.07 @ 4:38PM|#

Oh, and what agorabum said. And I think, agorabum, most of us do realize that. What we're doing is making fun of California. It's almost as good as making fun of Canada.

|12.28.07 @ 4:39PM|#

Dave W.|12.28.07 @ 4:39PM|#

"A well regulated militia, being necessary to the security of a free state" - Thus p must be true.

All things being equal, I prefer option x.

Does that mean that all things are indeed equal?

Paul|12.28.07 @ 4:39PM|#

If I am carrying concealed in your home, am a carrying on your property or on my person?

robc,

Yes.

|12.28.07 @ 4:42PM|#

Interesting questions on packing on private property. If I am carrying concealed in your home, am a carrying on your property or on my person?

robc, not to sound glib, but if I'm that committed, I don't give a damn...if I say no guns on my land, no guns. If I say no clothes, then no clothes (woo-hoo? ermm, I'm not sure...)

Although the logical conclusion to this is we're going to start getting in to what my obligations are as the inviter and what your rights are as the invitee...like, can I invite you in, immediately revoke my invitation and punch you if you don't leave fast enough?

I dunno...weird.

|12.28.07 @ 4:44PM|#

So, why don't the H&R regulars start getting a Ron Paul/1st amendment/2nd amendment rights rally together. I think there's probably a Whole Foods(tm) supermarket that would make a Jim Dandy location.

Probably for the same reasons most libertarians would never invoke Kelo's eminent domain powers.

Paul|12.28.07 @ 4:45PM|#

Also, there is no way for the US Supreme Court to overturn this ruling, since, it is the State Supreme Court ruling on a State constiutional issue (not the US constitution).

Agorabum, not true. If the State Constitution overrode or infringed upon a Federal Constitution amendment, then the US Court could overrule.

|12.28.07 @ 4:45PM|#

Dave W,
By some coincidence, your topic is being discussed at Volokh: http://volokh.com/posts/1198856765.shtml

Paul|12.28.07 @ 4:49PM|#

Probably for the same reasons most libertarians would never invoke Kelo's eminent domain powers.

Hmm, I took over PETA's local offices last week. It felt good.

|12.28.07 @ 4:57PM|#

Its a 5th amendment (thru broad interpretation of the 14th) issue. Is the state of CA taking private property rights from the mall owners?

Oh great. What would Ron Paul say about that?

Is this where the Bush v. Gore cites come into play?

R C Dean|12.28.07 @ 5:18PM|#

Astounding. All this yammer about free speech as a positive right (e.g., one you are entitled to state support for) is completely, 100% inconsistent with the 1A itself, which no one has bothered to quote.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

You will note that our "guarantee" of free speech is not one atom more than a guarantee that the State may not interfere.

R C Dean|12.28.07 @ 5:20PM|#

I don't see, though, how Congress couldn't ban guns outright if it really wanted; after all, if wheat grown for home consumption is under the purview of the ICC, I can't see why private gun sales aren't.

Because the enumerated powers are subject to the Bill of Rights. Congress can't ban the sale of newspapers or guns, either one (or couldn't, if we had a Supreme Court that knew how to read plain English).

|12.28.07 @ 5:36PM|#

Without the 14th, it would be up to the state to rule. With the expansive 14th, the state of CA is violating the 5th amendment with this ruling.

Totally correct, unfortunately meaningless since basically ALL states violate the 5th amendment by way of zoning laws, licensing laws, permits and other impediments to the full use of our property. One more violation (and a pusillanimous population to acquiesce) would not really matter.

|12.28.07 @ 5:49PM|#

Wait until people just blow off the malls altogether and do all their shopping online. Will stores be forced to put boycott notices on the new 'commons': their own web pages?

What will the state of CA force walmart.com to post, despite them not being a CA corp?

Franklin Harris|12.28.07 @ 7:03PM|#

Does this mean I can go to the union hall and picket against the union's fascist, bullying tactics and the union can't do a damn thing about it? Sweet.

Paul|12.28.07 @ 7:42PM|#

bullying tactics and the union can't do a damn thing about it?

Not officially...

|12.28.07 @ 10:02PM|#

All this yammer about free speech as a positive right (e.g., one you are entitled to state support for) is completely, 100% inconsistent with the 1A itself, which no one has bothered to quote.

Ok, RC, I've said that multiple times in this thread already.

Congress can't ban the sale of newspapers or guns, either one (or couldn't, if we had a Supreme Court that knew how to read plain English).

Yeah, that's why I mentioned (obliquely) Wickard v. Filburn.

you know, I get irritated even with people who agree with me but don't bother to read the thread.

|12.29.07 @ 10:36AM|#

Ayn Randian,

It is true that there are still downtowns, and teh internetz, but they are not remotely as much a part of people's lives as the town center/city center/agora were at the time of the Constitution.

The Founders, especially Jefferson, wrote quite extensively about this - that the open exchange of ideas in a competitive marketplace was important for the functioning of a democratic society. It isn't just that there could be a place that people could seek out if they were so interested, but that such give and take would actually be a prominent part of people's lives.

Fluffy|12.29.07 @ 11:53AM|#

If you choose to make your property open to the public (and there is no requirement that you do so), then you also owe certain duties to those members of the public who use your property.

The fact that you let persons other than those on title on to the property for some purpose does not mean you have "made your property open to the public".

I imagine you let people on to your property all the time. The guy who reads the electric meter. Garbagemen. Cleaning ladies. Your in-laws. The plumber. UPS.

Does your property cease to be private because you let people on to it to accomplish some specific end or purpose?

That's all the mall owner is doing. The specific end or purpose is simply "to shop" in this instance, and not "to fix the plumbing" or whatever as it is when you allow people on to your own property.

Face it: any legal doctrine based on the concept of a "public accomodation" has one purpose and one purpose only: to force some property owners to use their property in a way that allows the state to accomplish some goal it has whimsically decided is desirable. And that's crap. When I can walk into Michael Moore's house and give a speech any time I want, get back to me.

And actually, the fact that this is a state decision is useful. Since Ron Paul is pretty much the favorite topic for discussion around here, let me say that this example shows the weakness of his radical federalism.

The sort of radical federalism that allows for rights violations at the state level that would not be permitted at the federal level is flawed for a pretty simple reason: if the population of a state rebelled against petty tyranny in that state, the federal government would assist the state government in putting that insurrection down. That means that the ultimate sanction against tyranny outlined in the Declaration of Independence cannot be invoked against just one state - it has to be invoked against the entire nation. Obviously this is too minor a case for that to be an issue, but what if there was a state that wanted to start nationalizing industries? Or wanted to round up homosexuals and inter them in camps? If the whole nation is going to stand behind and enforce the laws of one state, then the courts of the entire nation should be able to review the laws of that state.

Oh, and Joe - I'm sure that even at the time of the revolution there were private spaces where people gathered as well as public spaces. I doubt they considered taverns and club halls at be "agoras". The citizenry of that time no doubt spent some of its time in public spaces and some of its time in private spaces, just as it does now. If they did not allow those who resented the existence of private spaces to pursue potential listeners into them, I don't see why we should be expected to. And that's what we're dealing with, pure and simple - resentment that the store had arranged matters so that its customers entered it through a private space.

|12.29.07 @ 12:10PM|#

Fluffy,

Let's compare that - you walk down the street to the tavern or the bookshop, and you see handbills on poles, hear street-corner preachers, and are handed flyers. You then walk into the tavern, and maybe talk some politics there.

vs.

You walk to your garage and get in your car. You are in your car until you get to the privately-owned mall parking lot. You walk into the privately-owned mall atrium, and go to privately-owned bookstore.

Not really the same thing at all, is it?

VM|12.29.07 @ 12:56PM|#

AR:

I totally agree with you.

(What are we talking about, again?)

[yells, "shenanigans" and runs off]

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