The Right to Shout 'Boycott' in a Crowded Shopping Mall
Jacob Sullum | December 28, 2007, 1:05pm
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.
Dave W. | December 28, 2007, 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!
Fluffy | December 29, 2007, 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.
