Real Estate & Property Law

Amicus Briefs Supporting Cert: Is Forcing A Property Owner To Allow Adverse Speech A Taking?

By Robert Thomas (inversecondemnation.com)

Four amicus briefs have been filed in Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009), urging the Supreme Court to review United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008). In that case, the Ninth Circuit held that six rules applied by shopping centers to restrict picketing and handbilling by union members violated the California Constitution's free speech clause and therefore impermissibly interfered with protected union activity. The decision required shopping centers to allow speech adverse to the shopping centers' financial interests on their properties. We summarized the Ninth Circuit's decision here.

• Brief Amicus Curiae of Pacific Legal Foundation
  

• Brief Amicus Curiae of Center for Constitutional Jurisprudence

• Brief for Donahue Schriber, Forest City Enterprises, Inc., General Growth Properties, Inc., Simon Property Group, Inc., The Taubman Realty Group Limited Partnership, and Westfield, LLC as Amici Curiae

• Brief Amici Curiae of International Council of Shopping Cneters and California Business Properties Association

The Questions Presented ask the Court to revisit PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the case in which the California Supreme Court held the California Constitution's free speech clause required shopping center owners make their property available as forum for public speech (in that case, handbilling regarding a cause about which the shopping center was neutral). Most other states, Hawaii included, do not require a shopping center to open itself up as a forum for public speech. See State v. Viglielmo, 105 Haw. 197, 95 P.3d 952 (2004).

When the California Supreme Court's decision was challenged as a judicial taking in the U.S. Supreme Court, the Court held there was no taking because the shopping center "failed to demonstrate that the ?right to exclude others? is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a 'taking.'" PruneYard, 447 U.S. at 84.

The critical difference between PruneYard and Macerich is that in Macerich, state law is being used to force the shopping center to allow protesters on its property who urge shoppers to boycott the very shopping center at which they are protesting, going to the very heart of a property owner's right to exclude.

The cert petition and the Questions Presented are posted here. The case's docket entry is here.

Full post as published by inversecondemnation on September 29, 2009 (boomark / email).