Pruneyard Revisited: Political Activity on Private Lands
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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).
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Pruneyard Revisited: Political Activity on Private Lands
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