71 Pages Posted: 14 Mar 2008
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.
Keywords: constitutional law, state constitutional law, freedom of speech, liberty of speech, constitutional interpretation
Suggested Citation: 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: https://ssrn.com/abstract=1105604