66 N.Y.U. L. Rev. 633 (1991)
Pruneyard Revisited: Political Activity on Private Lands

handle is hein.journals/nylr66 and id is 651 raw text is: PRUNEYARD REVISITED: POLITICAL
ACTIVITY ON PRIVATE LANDS
CURTIS J. BERGER*
In the decade since the Supreme Court's decision in Pruneyard Shopping Center v.
Robins, free speech advocates have tried to rely upon their state constitutions to protect
expressionist activities on private property. In the absence of this constitutional author-
ity, which often may be difficult toftnd, Professor Berger argues that other means exist
to resolve disputes between landowners and free speech advocates in favor of free ex-
pression. Demonstrating that the retail shopping center has replaced the classical
'public forum, fundamentally altering the manner in which Americans interact, Pro-
fessor Berger argues that protecting participatory democracy requires state courts and
legislatures to recognize free speech rights in shopping malls. Professor Berger con-
cludes by proposing a common-law rationale and statutory scheme to protect free
speech on private property, consonant with landowners' reasonable expectations and
free speech advocates' legitimate desires
INTRODUCTION
More than a decade has passed since the Supreme Court decided
Pruneyard Shopping Center v. Robins,1 a case that pitted free-speech
rights against those of private-property. In Pruneyard, the Court held
that the California State Constitution's2 grant to individuals of the free-
dom to enter a privately owned shopping mall and gather petitions did
not violate the property owner's first3 and fifth4 amendment rights under
the United States Constitution.5 In the same opinion, the Court ce-
mented earlier holdings6 that had denied such an expressive right of
* Wien Professor of Real Estate Law, Columbia University. B.A., 1948, University of
Rochester; J.D., 1951, Yale University. This Article began as a Jesse Marshall Lecture which
I delivered at the College of Law, University of Iowa, in April 1985. As I enlarged and trans-
formed the lecture through successive drafts, I received valuable comments from many friends
and colleagues, including Bruce Ackerman, Vicki Been, Vivian Berger, Vince Blasi, Richard
Briffault, Norman Dorsen, Dorothy Glancy, Gerald Kayden, Henry Monaghan, Burt
Neuborne, Michael Schill, and Mindy Tockstein. I also have had the assistance of several
excellent research assistants, Elizabeth Shea Fries, Tina Lebenson, Adam Mansky, and Amy
Starr. Thank you, all.
1 447 U.S. 74 (1980).
2 The California Constitution provides: Every person may freely speak, write and pub-
lish his or her sentiments on all subjects, being responsible for the abuse of this right. A law
may not restrain or abridge liberty of speech or press. Cal. Const. art. I,  2.
The Constitution continues: [P]eople have the right to... petition government for re-
dress of grievances. Id. art. I,  3.
3 See Pruneyard, 447 U.S. at 84.
4 See id. at 88.
5 U.S. Const. amends. I, V.
6 See Hudgens v. NLRB, 424 U.S. 507, 523 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551,
570 (1972).
633

Imaged with the Permission of N.Y.U. Law Review

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?