Returning to the Pruneyard: The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech
26 Pages Posted: 29 Jan 2009
Date Written: 2009
In PruneYard Shopping Center v. Robins, 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.
Keywords: Constitutional law, constitutional interpretation, freedom of speech, free speech, Pruneyard, First Amendment, Fifth Amendment, takings, state action
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