Uprooting the Pruneyard

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

Rutgers Law Journal, Vol. 38, p. 1145, 2008
U of St. Thomas Legal Studies Research Paper No. 08-07

If, in the description of one constitutional scholar, text, history, structure, prudence, and doctrine are the building blocks of constitutional argument, then the California Supreme Court's landmark 1979 decision in Robins v. Pruneyard constructed a building without a supporting foundation, sturdy walls, or a covering roof. The court invoked the Liberty of Speech Clause in the California Constitution to impose duties upon private landowners, not merely upon government, to facilitate the political speech of others. But Pruneyard was a disembodied policy decision, severed from constitutional text, history, context, and developed legal reasoning. In this Article, the author revisits the Pruneyard decision, through a scrupulous analysis of the text and the context of the typical state constitutional speech clause, together with a fresh examination of original historical sources in state constitutional drafting. The author further addresses the continuing interplay in constitutional law between freedom of speech and guarantees for private property, insisting that weakening the latter ultimately compromises the former. Because Pruneyard has received persistent attention in ongoing constitutional debates for more than two decades, because more than thirty states share a similar text for (and much of the same history of) a constitutional liberty of speech clause, because Pruneyard is a period piece from a particular epoch in American constitutionalism, and because the jurisprudence of constitutional interpretation has progressed beyond that stage, the story of Pruneyard is a cautionary tale with national resonance.

Number of Pages in PDF File: 71

Keywords: constitutional law, state constitutional law, freedom of speech, liberty of speech, constitutional interpretation

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Date posted: March 14, 2008  

Suggested Citation

Sisk, Gregory C., Uprooting the Pruneyard. Rutgers Law Journal, Vol. 38, p. 1145, 2008; U of St. Thomas Legal Studies Research Paper No. 08-07. Available at SSRN: http://ssrn.com/abstract=1105604

Contact Information

Gregory C. Sisk (Contact Author)
University of St. Thomas School of Law (Minnesota) ( email )
MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

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