In PruneYard Shopping Center v. Robins, (1) the United States Supreme Court held that the owner of a private shopping center who was required by a state court to grant political solicitation and speaking rights to strangers had thereby suffered neither a constitutional taking of private property without compensation under the Fifth Amendment nor a deprivation of the owner's own free speech rights under the First Amendment. Revisiting this subject more than a quarter-century later, this Essay argues that the PruneYard decision never should have been read as an open invitation to the states to impose constitutional obligations upon private landowners regardless of the offensiveness of the speech being expressed over the owner's objection or the permanence and breadth of the government-commandeered access to the property. Moreover, the Supreme Court's decisions over the past quarter-century confirm that imposing a permanent and continuous free-speech easement on private property is a taking for which compensation is due. A judicially created right of trespass in the name of free speech cannot be squared with federal constitutional protections of expressive autonomy and private property.
I. INTRODUCTION AND BACKGROUND
Nearly thirty years ago, the California judiciary construed its state constitution's "liberty of speech" clause to require certain private citizens to allow strangers access to private property as a venue for expressing political opinions. In Robins v. Pruneyard Shopping Center, a bare 4-3 majority of the California Supreme Court held that a group soliciting signatures for a political petition had a state constitutional right to do so in the common areas of the privately owned PruneYard Shopping Center, despite the center's uniform policy prohibiting solicitation inside the mall. (2) The court rendered this decision, which found no support in the text, structure, or drafting history of the California Constitution, (3) "during the closing days of an era of an expansionist and free-wheeling approach to constitutional interpretation." (4)
As a radical departure from the Lockean concept of rights as a check on government power, the California Pruneyard decision has found few admirers among the courts. The United States Supreme Court long since confirmed that it is "commonplace that the [federal] constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state." (5) Likewise, a substantial majority of states (6) have adhered to the traditional understanding that constitutional rights limit the government's power to interfere with our freedoms; they do not disturb the freedom of private citizens. (7) Thus, nearly every state supreme court to address the matter has refused to convert the shield of state constitutional rights against government power into a sword that one private citizen could wield against another. (8)
New Jersey, however, not only has followed California in enforcing state constitutional duties to facilitate speech against private landowners (9) but has become "a much more zealous disciple than the teacher." (10) Ranging well beyond the large shopping center context, New Jersey has aggressively extended the judicially created right of constitutional trespass in the name of free speech to private universities, (11) private residential communities, (12) and even the corridors of privately owned residential buildings. (13)
As recently as 2007, the California Supreme Court in Fashion Valley Mall LLC v. National Labor Relations Board (14) declined the invitation to overrule Pruneyard (by the same single-vote margin as in the original decision). A few years earlier, a plurality of the court had acknowledged the severe criticism of the Pruneyard decision, recognizing that most other states had rejected it and that it had no basis in the text, history, or structure of the California Constitution. (15) In Fashion Valley Mall, however, a majority of the California Supreme Court recited the Pruneyard line of cases, without adding to or reevaluating the abbreviated Pruneyard reasoning. …