California SC says Free Speech is protected in public places like the mall....

[Ric in Richmond]

So do you think they would have said the same thing about the Second Amendment???

Does this mean NO ONE can ban a handgun from pricate property? (yeah...just kidding ...I know better!!)

http://blogs.wsj.com/law/2007/12/26/ca-supremes-give-free-speech-rights-on-private-property/

CA Supremes Give Free Speech Rights on Private Property
Posted by Peter Lattman
If someone had asked us last week, “Hey Law Blog, can a San Diego shopping mall stop protestors from demonstrating there to urge a boycott of one of its tenants?,” we’d have said, “Of course! A mall is private property, so the owner can do what it pleases.”

We would’ve been wrong. In a 4-3 nailbiter, the California Supreme Court upheld a decades-old precedent protecting free speech rights at shopping centers, even if the malls are privately owned. Here is the 46-page ruling, and stories from the LA Times, NYT, and San Diego Union-Tribune.

The facts: In 1998, in the midst of a contract dispute between the San Diego Union-Tribune and its pressroom union, dozens of union members stood in front of a Robinsons-May store — one of the paper’s big advertisers — to discourage people from shopping there. Mall officials told them to scram. (Law Blog Reading Recommendation: Click here for an Economist article this week on the death of the shopping mall.)

Justice Moreno said while the mall could regulate protests, it couldn’t regulate the content of their speech. “They may not prohibit certain types of speech based upon its content, such as prohibiting speech that urges a boycott of one or more of the stores in the mall.”

In dissent, Justice Chin said the court was treating private property as a “public free speech zone.” “A shopping center exists for the individual businesses on the premises to do business,” he wrote. “Urging a boycott of those businesses contradicts the very purpose of the shopping center’s existence.”

UCLA law professor Eugene Volokh told the LAT that his state and a few others back free speech at large malls on the theory that they function as modern-day town squares. “That’s where people congregate these days, and that’s where it’s important that free speech be protected.”

O beloved Law Blog readers, should there be free speech rights on private property?

 

[Henry Bowman]

I notinced your comment posted on the wsj blog, Ric. Nice touch.

Please note that this case was decided on the basis of California state constitution, article I, section 2 (NOT the US Constitution, Amend. I), which the Cal. Sup. Ct. says "grants the right to free speech" an California statutes. They noted, however, that the SCOTUS had interpreted the 1A to apply in some cases to private property. Marsh v. Alabama, 326 U.S. 501, 506 (1946) ("The more an owner, for his advantage, opens up his property for use by the public in general, the more do his right become circumscribed by the statutory and constitutional rights of those who use it."). Prior California cases had held the same. This case differed only in that the speech was urging boycott of the store being picketed.

I see no reason why the SCOTUS case should not apply to the 2A as well. You have the right to barr anyone from your property. But once you elect to open it "to the public," their rights will begin to outweigh yours. The SCOTUS has backed off of the Marsh holding in a later case, however. Hudgens v. NLRB, 424 U.S. 507 (1976). California courts, however, have continued to find greater free speach rights under the Cal. Const., though the cases have been selective depending on how PC the content of the speech is.

The case is an interesting insight into the "thinking" on California's high court. http://www.courtinfo.ca.gov/opinions/documents/S144753.PDF

 

[Rumpled]

Unfotunately, CA has no state 2A; so no hope of advancing that which does not exist.

 

[TexasRifleman]

I'm pretty sure private property rights hit the door with Kelo, we're just in the cleaning up phase now with stuff like this......


That's why Heller scares me so much. A court that would find Kelo the way they did might do God knows what to the Second Amendment.